Which Will Kavanaugh Follow—SCOTUS Precedent, or His Oath of Office?

Image credit: The White House

This morning I saw a Facebook comment that succinctly summarized important evidence that what I know to be raises serious concerns about Brett Kavanaugh, President Trump’s nominee to replace retiring Justice Anthony Kennedy on the Supreme Court of the United States. (SCOTUS)

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Among other things, this evidence alludes to the following exchange between Mr. Kavanaugh and rabidly feticidal Senator Charles Schumer (D., NY):

Mr. KAVANAUGH. Senator, on the question of Roe v. Wade, if confirmed
to the D.C. Circuit, I would follow Roe v. Wade faithfully
and fully. That would be binding precedent of the Court. It’s been
decided by the Supreme Court—

Senator SCHUMER. I asked you your own opinion.

Mr. KAVANAUGH. And I’m saying if I were confirmed to the D.C.
Circuit, Senator, I would follow it. It’s been reaffirmed many times,
including in Planned Parenthood v. Casey.

Senator SCHUMER. I understand. But what is your opinion?
You’re not on the bench yet. You’ve talked about these issues in the
past to other people, I’m sure.

Mr. KAVANAUGH. The Supreme Court has held repeatedly, Senator,
and I don’t think it would be appropriate for me to give a personal
view of that case. (Confirmation Hearing on Brett Kavanaugh’s Nomination to be Circuit Judge)

As I argue conclusively in an article earlier this week, the anti-Constitutional Jurisprudence of the SCOTUS majority in the Roe v Wade and Obergefell v Hodges decisions takes a wrecking ball to the understanding of right and rights that authorizes the sovereign self-government of the people of the United States. The first denies and disparages the unalienable right-to-life. The second denigrates the Creator-endowed unalienable rights the institution of marriage entails. From the moment they chose “to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”, the American people have relied on the Creator God’s authority over all Creation to justify their assumption of governmental power over themselves.

Like the contest over slavery in the 19th Century, the presently ongoing contest over issues like abortion and natural family rights will, in the end confirm or put an end to our self-government. If the standard of justice transcends human will and power, our proper liberty, as individuals and as a people stands affirmed. If we allow elitists to reestablish arbitrary human will and power as our rubric of justice, that liberty falls prey to those whose superior power allows them to enforce their will. Human experience emphatically proves that this invariably results in rule by the powerful few, forcibly imposing the elitist dogmas that inculcate and enforce their supremacy.

In his exchange with Senator Schumer, Mr. Kavanaugh emphasizes his respect for “binding precedent…decided by the Supreme Court.” But the Supreme Court’s just power derives from that of the people, who ordain and establish the “Constitution for the United States of America.” By their own proclamation (in the Declaration of Independence) the people, as individuals and as a whole, derive their just power from the authority of the Creator, God. Now, like other civil officeholders of the United States government, the Supreme Court Justices swear to “support and defend the Constitution of the United States.” The need to respect the authority that justifies the people’s sovereignty is not a matter of personal opinion it is a matter of sworn responsibility.

During the debates over the Constitution, both those who doubted and those who supported it couched their argument in terms of the “principles of the revolution”. The first of those principles, on which all the rest depend, is the Creator’s endowment of right and rights, according to the will made manifest in “the laws of Nature and of Nature’s God.” If any Judge or Justice, at any level of government in the United States, discards the rule of God for Justice, that person subverts the authority of the people. Far from supporting and defending the Constitution, this undermined and destroys it.

Mr. Kavanaugh’s admission of slavish respect for “binding precedent of the Court” thus stands in contradiction with the oath that binds Judges and Justices to defend the Constitution. The SCOTUS decisions in question challenges the understanding of justice all Americans are supposed to have in common. This sense of justice authorizes the citizen body (body politic) of the United States to “ordain and establish” the governments, at any level, that wield its power. Moreover, if—through ignorance, deceit, or passionate self-will—the people themselves move to discard the ruling ordained by God’s justice, the job of Judges and Justices is to rebuke the error by which Americans fatally undermine the claim to sovereignty they thereby self-destructively abuse.

Of course, Mr. Kavanaugh was not the only candidate for the nomination now bestowed upon him who has failed to clearly articulate respect the logic that sustains our unalienable rights as individuals, and our God-dependent liberty as a people. Amy Coney Barrett has written about Supreme Court precedents as if their status as binding depends on the “settled opinion” of the society at large. But though the Declaration of Independence speaks of showing “a decent respect to the opinions of mankind”, the word “decent” has precisely to do with what is “becoming; fit; suitable, in words, behavior, dress and ceremony….”

But how can it ever be fitting for a people whose just sovereignty depends on the authority of their Creator, God to persist in tearing down that authority, when the result must leave them naked to the enemies of their Creator-endowed unalienable rights, including liberty? Rather, their unprincipled temerity makes them unfit to sustain the freedom, in respect of right, God otherwise intended for humanity. Given its fatal consequences, no one should be confirmed for a seat on the Supreme Court of the United States who will encourage and perpetuate such suicidal folly.

The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.

Once a high-level Reagan-era diplomat, Alan Keyes is a long-time leader in the conservative movement. He is well-known as a staunch pro-life champion and an eloquent advocate of the constitutional republic, including respect for the moral basis of liberty and self-government. He has worked to promote an approach to politics based on the initiative of citizens of goodwill consonant with the with the principles of God-endowed natural right.

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