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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  June 26, 2008
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"Liberal" Justices Are The Judicial Law-makers

Note to Senator John McCain: The key to winning the United States presidency and taking up White House residency is pledging and promoting constitutional fidelity and exposing the Democrat presidential candidate's judicial activist tendency.

By 5 to 4, the United States Supreme Court respected the Second Amendment right of individuals to have guns.

What is most amazing is not that Justice Anthonmy Kennedy got it right, but that the minority (Justices Stevens, Souter, Ginsburg and Breyer) accused the majority (Chief Justice Robert and Justices Scalia, Thomas, Kennedy and Alito) of judicial law-making.

What gall!

The majority did precisely what it was supposed to do: ascertain the meaning of the words used when the Second Amendment was written and ratified.

For that, I am greatly gratified.

It is the judicial activist justices who legislate from the bench, not the ones who are faithful to the Constitution.

And if Justice Kennedy would do the same thing when it comes to religious issues, the egregious error made by the Supreme Court in 1947, in Everson v. Board of Education, would be remedied and the threat to "under God" in "The Pledge of Allegiance" and "In God We Trust" on the coin and currency and in courthouses would be ended.

Note to Judicial Activist Justices:

In 1823, Thomas Jefferson opined in a private letter how constitutional meaning should be ascertained: "On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it passed."

EXACTLY!

Early United States Supreme Court decisions adopted the same approach.

In Gibbons v. Ogden (1824), Jefferson's cousin, Chief Justice John Marshall explained that since "the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said."

In Ogden v. Saunders (1827), Marshall noted that "the intention of the instrument must prevail" and "be collected from its words," "its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended," and "its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them nor contemplated by its framers...."

Justices who would disregard the dictionaries from the time the Second Amendment was written and ratified are the ones eager to engage in judicial law-making, which pretending otherwise and casting aspersions of the advocates of constitutional fidelity.

Unsurprisingly, judicial activists have ignored the real meaning of the religious clauses of the First Amendment in pursuit of their own political agenda.

Judicial activists expanded the First Amendment's Establishment Clause absurdly, in an effort to impose governmental neutrality between religion and irreligion, notwithstanding the Declaration of Independence, the Articles of Confederation and the Constitution.

In the mid nineteenth century, Congress rejected a secular extremist challenge to the constitutionality of the military chaplaincy.

After careful study, the Senate Judiciary Committee issued a report explaining the establishment clause:

"The clause speaks of 'an establishment of religion.' What is meant by that expression? It referred, without doubt, to the establishment which existed in the mother country, its meaning is to be ascertained by ascertaining what that establishment was. It was the connection with the state of a particular religious society, by its endowment, at public expense, in exclusion of, or in preference to, any other, by giving to its members exclusive political rights, and by compelling the attendance of those who rejected its communion upon its worship, or religious observances. These three particulars constituted that union of church and state of which our ancestors were so justly jealous, and against which they so wisely and carefully provided...."

The report further stated that the Founders were "utterly opposed to any constraint upon the rights of conscience" and therefore they opposed the establishment of a religion in the same manner that the church of England was established. But, the Founders "had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people....They did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of 'atheistic apathy.' Not so had the battles of the revolution been fought, and the deliberations of the revolutionary Congress conducted."

A similar House Judiciary Committee report explained that "an establishment of religion" was a term of art with a specific meaning:

"What is an establishment of religion? It must have a creed, defining what a man must believe; it must have rights and ordinances, which believers must observe; it must have ministers of defined qualifications, to teach the doctrines and administer the rites; it must have tests for the submissive, and penalties for the nonconformist. There never was an establishment of religion without all these."

Tragically, judicial activists imagine an unconstitutional establishment of religion even when a state (such as South Carolina) contemplates issuing "I Believe" license plates to people who want to buy them.

Note to Senator John McCain: The key to winning the United States presidency and taking up White House residency is pledging and promoting constitutional fidelity and exposing the Democrat presidential candidate's judicial activist tendency.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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