The Supreme Court: The Dog that Didn’t Bark

by | Sep 26, 2018 | Headline News | 36 comments

Do you LOVE America?


    This article was originally published by James Bovard at the Mises Institute

    The furor over the nomination of Brett Kavanaugh is spurring many commentators to bewail that the Supreme Court has become too powerful. But the real problem is that the Court is now often little more than a fig leaf to provide legitimacy for a Leviathan that would have mortified the Founding Fathers. The Court’s betrayal of its constitutional role has vastly increased the stakes for the current and any future Justice nomination.

    Kavanaugh’s owes his credibility as a nominee to the Supreme Court dodging key issues in recent decades. Kavanaugh worked as a White House associate counsel after 9/11 when Justice Department lawyers asserted that the president had a right to violate the law and the Constitution, the most brazen assertion of absolutism in modern times. Kavanaugh avidly supported nominating John Yoo as a federal judge despite a Yoo memo asserting that President Bush had a right to declare martial law and deploy U.S. troops in American cities. The Supreme Court never forthrightly condemned the Bush administration’s torture program that Yoo legally enabled.

    The Supreme Court also shirked ruling on the National Security Administration illegal wiretapping, instead rejecting a challenge in 2013 because the defendants could not prove the feds secretly spied on them. The Court was shamed a few months later when Edward Snowden released a deluge of documents proving vast illicit surveillance of millions of Americans. But because the Court never stood up for Americans’ constitutional rights, Kavanaugh could get away with a 2015 appeals court decision in which he declared that “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.”

    The Court’s post-9/11 docility fits a long pattern of rulings which have practically defined “outrageous government conduct” such as entrapment out of existence. For practically a century, the Supreme Court has been “the dog that didn’t bark” when the executive and legislative branches trampled the Constitution.

    In 1990, in the case of Michigan vs. Sitz , the Supreme Court upheld drunk driving checkpoints because the searches were equally intrusive on all drivers, so no individual had a right to complain. This stood the Bill of Rights on its head, requiring government to equally violate the rights of all citizens. The same legal mindset sanctifies Transportation Security Administration enhanced patdowns which pointlessly grope groins as long as the feds treat all travelers like terrorist suspects.

    In 2001, in the case of Atwater vs. Lago Vista , the Court upheld the arrest of any citizen accused of violating any picayune local, state, or federal ordinance. This case involved a Texas woman who was driving slowly in a residential area; because her children were not wearing seatbelts, she was handcuffed and taken away. The Court declared that police can arrest anyone believed to have “committed even a very minor criminal offense.” This ignores the criminalization of everyday life that has occurred at every level of government, thus giving law enforcement pretexts to detain almost anyone they choose. (Police boast that they can find a reason to pull over almost any driver.)

    In 2005, in the case of Kelo vs. New London , the Supreme Court approved local politicians confiscating private property as long as they believe that some other private use of the land would generate more tax revenue. Scuttling the Fifth Amendment’s Takings clause (which restricted the use of eminent domain), the Court instead empowered governments to commandeer any land for almost any purpose so long as government officials promised net benefits to society sometime in the future. This sweeping decision makes private property rights contingent on political candor – the shakiest of foundations.

    Court decisions do occasionally throw a penalty flag on government abuses but the Justices are akin to a football referee that notices only every tenth clip or roughing of the quarterback. Unfortunately, the Court has consistently ruled that government officials are personally immune regardless of how they abuse private citizens.

    If the Supreme Court had not long devoted itself to concocting judicial rationales for political power grabs, there would not be so much hatred and fear surrounding the Kavanaugh nomination. Because of the deference Court decisions receive, citizens view court nominees as the ultimate czars of whether they will be forcibly disarmed, stripped of their property, treated like prisoners when traveling, or denied sovereignty over their own bodies. Recent bitter experience confirms the wisdom of Thomas Jefferson’s 1820 warning that permitting judges to be “the ultimate arbiters of all constitutional questions” is “a very dangerous doctrine indeed.”

    Rather than focusing on whether Kavanaugh or his accusers consumed excessive alcohol, we should recognize that the current frenzy is the result of a political class long since drunk with power. Regardless of the outcome of the Kavanaugh nomination, the Supreme Court should return to its long-lost role as a bulwark against tyranny. Unfortunately, there are not any mobs in the Washington streets howling for that salutary outcome.


    About the Author

    James Bovard is the author of ten books, including 2012’s Public Policy Hooligan, and 2006’s Attention Deficit Democracy. He has written for the New York Times, Wall Street Journal, Playboy, Washington Post, and many other publications. Follow him on Twitter.


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      1. SHTF bites the hand of their conservative masters. What’s the website coming to?

        • Truth is truth.

          • boy, is THAT ever true. this was quite an eye-opener. thank you for printing it, mac. seems there is NO-WHERE to hide from the corruption these days across the looted plain. the divided states of america is truly on her last legs. it was a good run….in my younger days…, not so much.

      2. This James Bovard is a bovine cow of the Progressive Leftist Democrats. Read his bio.

        “James Bovard is the author of ten books, including 2012’s Public Policy Hooligan, and 2006’s Attention Deficit Democracy. He has written for the New York Times, Wall Street Journal [Oh wow. An exception?], Playboy, Washington Post, and many other [Progressive Leftist Democrat] publications. Follow him on Twitter.” [Twitter. How Progressive Socialist Democrat can you get?]

        All Progressive Leftist Democrat strongholds.

        Bovard’s article is just a desensitization piece, getting the people ready, setting-up to ready the masses for a landslide against Kavanaugh.

        • James is a long time libertarian

      3. “Attention Deficit Democracy?” Another book written by a Progressive Socialist Democrat. We don’t have a democracy. We have a republic. Whenever you hear the word “democracy” think “Bullshit.”

        • It’s illegal and unconstitutional for any state to declare for ANY kind of government other than a republic.

          ” Section 4: Obligations of the United States
          Clause 1: Republican government
          This clause, sometimes referred to as the Guarantee Clause, has long been at the forefront of the debate about the rights of citizens vis-à-vis the government. The Guarantee Clause mandates that all U.S. states must be grounded in republican principles such as the consent of the governed .[17] By ensuring that all states must have the same basic republican philosophy, the Guarantee Clause is one of several portions of the Constitution which mandates symmetric federalism between the states.
          The Constitution does not explain what exactly constitutes a republican form of government. There are, however, several places within it where the principles behind the concept are articulated. Article Seven , the last and shortest of the Constitution’s original articles, stipulated that the Constitution, before it could become established as the “Law of the Land”, must obtain the consent of the people by being ratified by popular conventions within the several states. Additionally, as it required the ratification of only nine states in order to become established, rather than the unanimous consent required by the Articles of Confederation , the Constitution was more republican, as it protected the majority from effectively being ruled or held captive by the minority. [18]
          The Federalist Papers also give us some insight as to the intent of the Founders. A republican form of government is distinguished from a direct democracy , which the Founding Fathers had no intentions of entering. As James Madison wrote in Federalist No. 10 , “Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

          • Per Wikipedia – Athenian democracy was twice interrupted by “oligarchic revolution.”

            Rome was also initially a more direct democracy and then descended into oligarchy when it then eventually collapsed.

            Over reach of government as cited by the author of the article and many others in the comments through the oligarchy in the United States continues until we now stand on the precipice of God only knows what.

            How would you propose to reign in government?

            • If you know American history, Jefferson was upset with the Federalists as he intended for there to be a weak federal government. In fact Rhode Island almost started a civil war because they didn’t want to adopt the Constitution unless it was certain that there would be a weak federal government.

              Jefferson had bad blood with John Addams about this issue. The federalists started calling Jefferson and his followers democrats and linked them with the insane French revolution. So instead these antifederalists adopted the name Democrat-Republicans out of SPITE.

              Regardless of what any moronic Democrat’s opinion today, Article 4 of the Constitution couldn’t be plainer. The USA is a constitutional REPUBLIC and any government other than a republican one is anathema. Anyone supporting any other form is a TRAITOR. Treason is our most serious crime and the penalty is hanging because in times under monarchies there was a stigma on those who were hanged.

              • With all due respect, there seems to be some processing error or mental disconnect in Republicans, who vie for a weaker, fed govt.

                Isn’t the fed govt the republic?

                When you say there is a system of rules, meant to protect the unpopular minority from the tyranny of the majority, that was the fed govt, of which I was aware.

                In it’s proper place, it would be considered a civilizing influence, according to this line of reasoning.

                • The notion of federal, state and local government is to serve as a check and balance against tyranny.

                  I would not personally characterize the federal government as representing the totality of our republic.

                  Imo there have been instances of government over reach on all levels. Sometimes states are out of line and sometimes the federal government can also act in unconstitutional ways.

              • It’s a little unclear what prompted your discussion of any form or activity of direct democracy as being illegal. Are you suggesting that the author of the article be charged with treason?

                It may be worthwhile to note that per Wikipedia direct democracy exist within the United States within as noted Vermont and New England and predates the constitution by at least 100 years. Are you suggesting those citizens also be charged with treason?


                • My above comments and questions are directed to Maranatha

                  • It was the Founding Fathers intention that STATES would have a republican form of government emulating the federal form of government. All territories that became states HAD to agree to that.

                    They hated democracies. Period.

                    The only reason that Jefferson’s party called themselves Democratic-Republicans was to mock their detractors who compared them to the lunatics in the French revolution.

            • By force of arms. That’s what a 2ND Amendment is for.

            • rein

        • ???

        • Yep. That’s right.


          • Blam-e:

            Spot on. You nailed it.


      4. Progressive democrats want to use the supreme court to cram their socialist agenda down Americas throat. These progressives are one of the most dangerous threats to American freedoms ever.

        • And Kavanaugh as well as other Constitutionally oriented Justices on the Supreme Court are the greatest threat to the Leftist agenda.

      5. Blame-e:

        Excellent post on your part.

        Democracy is a euphemism for Communism.

        Communism was/is Joo in origin, in fact.

        The New York Times, etc. all owned by Joos. It is a fact.


      6. The US is a nation of political liars with lies built upon lies with no end. This is our system. The only goal is to become wealthier by whatever means necessary. With 300,000,000+ people at least two thirds struggle to survive to support their existence working for low wages while increasingly unable to afford the cost of living. Not hard to see where this ends when people needs are ignored and trillions are spent waging wars. It’s a big F you to the people no matter how far and wide you look.

        • another good post!

        • The US is a nation of (((political liars with lies built upon lies with no end.))) This is (((their))) system.

      7. “Kavanaugh avidly supported nominating John Yoo as a federal judge despite a Yoo memo asserting that President Bush had a right to declare martial law and deploy U.S. troops in American cities. The Supreme Court never forthrightly condemned the Bush administration’s torture program that Yoo legally enabled.”

        Q’s cult following has been prepping for mass arrests, as well as the subversives being used for bait dogs. They want you to see it as a good thing. They want you to crave martial law and to beg for it.

        Under historical, emergency powers, authoritarians have never been able to tell the difference between insane, useful-idiot protestors and the quieter people, minding their own business. Everyone gets caught up in the drag net or war effort.

      8. Like I’ve said before….

        Communism is not
        compatible with the Constitution. And
        anyone using it or promoting it, should be fired from
        any job civil or govmt. from dog catcher
        to president.
        Subject them to fines and/or 3-10 years

        So all ANTIFA, ACORN, OCCUPY (where ever),
        LA RASA, Black Lies Matter, Black Panthers, etc.,etc. or any other of
        thousands of communist Anti-American manifestos….
        will be severely punished.

      9. Amen to the truth.

        Too bad in this day and age, truth doesn’t matter any more. You can be right; you can be telling the truth; can be innocent. It doesn’t matter, if they want to take you down, you are going down. Conversely, you can lie, cheat, steal, even murder and walk away, Hillary, er, Renee.

        BTW, in the Kelo vs. New London case, after screwing all those people, the shopping center was never built.
        Most people could care less.

      10. The Supreme Court is the way it is because our state and federal lawmakers have abandoned their jobs. Instead of voting on controversial laws they kick it over to the Supremes so they could take the heat.To wit: gay marriage,Roe v Wade,etc. These social issues have no business in court never mind SCOTUS

      11. Not going to mention Bob Jones U – the IRS can pull tax deductions because they don’t like your religion, or Roe v. Wade (or the earlier Griswold that created the Penumbras and Emanations), or even Obergefell that shoved Gay Marriage down the throats of every state (but not the IRS for some reason).

        Selective outrage.

      12. the way I see it all: Americans are dead asleep as to what is going on. The Jews control America and our military. The Jews continue flooding the white countries with 3rd world brown people to destroy whites as they are the biggest threat to the Jews — as are our guns. Agenda 21 will destroy all of us but for the remaining 250 million(?) who will be their slaves. Evil progresses when good men/women do nothing and that is what we have now and it won’t be changing. We are going under because we chose that…

      13. It was over when Edwards decided with the left to allow the ACA.

      14. No. If you study colonial American history, the Founding Fathers were pushing for a WEAK federal government. The antifederalists were deeply concerned and demanded a Bill of Rights ie a listing of natural rights originating from GOD or Nature that were inherrant and inalienable. The Federal government is limited. Notice that these Bill of Rights say what the Federal shall NOT do. And the Tenth Amendment promises even more rights not listed and at the discretion of the People and the state governments.

        What happened was early on with the Whisky Rebellion, Washington lost his way as did John Addams. Look it up. The came out strongly for the federal government to act forcefully and honestly illegally.

        This pattern is how Jefferson won as the 3rd president. And subsequently you have the states rights versus the federalists up to and causing the Civil War.

        The healthiest thing we could do is restore states rights as then all the kooks would move to states where they allowed liberalism and leftist ideas while the conservatives would move and establish bastions devoted to a constitutional republic. There would be no Democrats in the latter regions.

        That is what the Founding Fathers presumed would occur. New territories would be filled will like minded people having a common ethos, and others would move to a different state. And each state would have the power through a compact with the People in their state.

        The Federal government would coin money, settle diplomatic disputes largely over contested territory, and limit a standing Army with militias as filler in times of national crisis and likely war. That is all.

      15. Well Im glad there are no attempts being made to stultify intelectual conversation concerning political models past and present.

        Many may recall the popular phrase “If you dont have anything to hide you dont have anything to worry about” in the aftermath of the passage of the Patriot Act. Unpublished elsewhere to my knowledge is the following key concept: While the deep State has likely existes for hunde esa of years it has continúes to gain strength. The Patriot Act enabled the deep state to morph into what nearly approaches a Gestapo State in our present time. Alohabet soup agencies everywhere we turn usurping hundreds of billions of dollars. Secret courts and liberties being taken with the creation of list where there is no due process. So perhaps now those who spoke that horrifyingly chilling phrase mentioned above are beginning to understand why you dont trade liberty for security.

        It is sometimes said what goes around comes around. It is uncertain what will become of Kavanaugh but the is certain. Kavanaugh as shows un the article played an instrumental role in the further development of the deep state. To a large extent it could be that he is the archetect of his own troubles and possible demise.

      16. It is often said that Jefferson swore upon the alter of God to resist all forms of Tyranny over the minds of men.

        In that spirit let us continúe For what does it profit humanity to kept ignorant in the shadow?

        Per Switzerland has a Semi direct democracy dating back to 1850.

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