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Informed Consent

Due diligence requires asking and answering how prospective judges support the Constitution.

James Anthony
October 1, 2020 drafted
October 16, 2020 published

A prospective judge’s existing knowledge base [1] will figure into the judge’s future opinions.

On future cases, facts are not yet known; but on most future cases, the law [2] is already known.

A candidate who withholds any current opinions on existing law while a president is nominating or while senators are advising and consenting [3] is not performing the job of a candidate. Such nonperformance strongly suggests that if appointed, the candidate would also not perform the job of a judge on some cases or on many cases.

A president who nominates a candidate who withholds any current opinions on existing laws, or a senator who advises in favor of and consents to such a candidate, is not representing we the people.

Life, Then Liberty, Then Property

Judges’ opinions on past cases are not law on future cases, so a candidate’s current opinions on those past cases are not the opinions that are needed.

Since past judges’ opinions shouldn’t matter, presidents and senators should make past judges’ opinions not matter. Presidents and senators should not question candidates about past judges’ opinions.

Constitutionally, a judge on the Supreme Court, like all state and national civil officers other than the president, must take an oath or affirmation [4] to support the Constitution [5]. Also, constitutionally, the existing law that’s supreme [6] is the Constitution.

This means that when considering nominating, and when advising and considering consenting, the questions about existing law that are supreme are questions about the Constitution.

Like all law [7], the Constitution consists of rules and sanctions.

In the Constitution, the sanctions aren’t specific penalties associated with specific rules but rather are various offsetting powers. Each offsetting power comes into play to enforce a given rule only if the rule is first transgressed. So the necessary starting point in supporting the Constitution is to have constitutionally-correct opinions on the Constitution’s rules.

Most of the Constitution’s rules are supporting rules that help secure more-fundamental rules. The most-fundamental rules [8] aren’t at all equal; rather, they form a hierarchical sequence: life must be made secure before liberty becomes primary, liberty must be made secure before property becomes primary, and property must be made secure then—all types of property, and each aspect of each type.

The primacy of these bedrock rights, and also this hierarchy, are violated by major unconstitutional opinions of past Supreme Courts. Majority opinions in favor of abortion destroy life, supposedly to secure liberty. Majority opinions in favor of Progressive social changes destroy religious liberty and destroy liberty to use one’s property as one chooses, supposedly to secure other, extraconstitutional rights.

To represent we the people when nominating and when advising and consenting on judges on the Supreme Court, presidents and senators must ask, obtain, and weigh prospective judges’ opinions on the Constitution’s rules on life, liberty, and property:

No Person Shall Be Deprived of Life …

  1. Is it your current your current legal opinion that life begins at conception [9]; and that once conceived, no person shall be deprived of life without due process of law?
  2. In your current legal opinion, must a Congress either pass a declaration of war [10] or pass a letter of marque and reprisal [11], and also pass the applicable rules of engagement [12], before a president can constitutionally command a use of military force, apart from self-defense, that may deprive a person of life, liberty, or property?
  3. In your current legal opinion, what national-government actions are enough and are not too much to take care [13] to guarantee a republican form of government [14] and provide that no person shall be deprived of life, liberty, or property [8] due to current state-government, county-government, or city-government officers impeding enforcement of existing national laws or not enforcing, prosecuting under, or convicting under existing local laws?
  4. In your current legal opinion, which areas of current national criminal law and civil law include at least one law that’s unconstitutional [15]?
  5. In your current legal opinion, which areas of current national statutes, regulations, executive actions, or agency actions that control or advise on health, pharmaceuticals, medical devices, medical tests, or health precautions include at least one government action that’s unconstitutional [15]?

No Person Shall Be Deprived of Liberty …

  1. In your current legal opinion, which areas of current state, county, city, community, business, school, or other-organization rules on COVID-19, including lockdown, masking, and distancing rules, deprive persons of liberty or property [8] without due process of law?

No Person Shall Be Deprived of Property …

  1. In your current legal opinion, which areas in which Congresses currently exercise executive powers [16], including statutes asserting control over the national government’s organizational structure, over budgets other than the overall budget, over hiring, and over firing or letting go [17], are unconstitutional?
  2. In your current legal opinion, which actions through which Congresses currently delegate [18] legislative powers [19], including by creating statutory goals [20], chartering companies, and performing other actions, are unconstitutional?
  3. In your current legal opinion, which areas in which Congresses currently control money and banking, including forcing people to accept fiat currency as legal tender [21], authorizing the creation of fiat currency [22], granting privileges to maintain fractional reserves [23], and granting privileges to create money to lend [24], are unconstitutional?
  4. In your current legal opinion, which types of regulation of uses of property are not takings which require just compensation [25]; what processes can be imposed by government people on government people to appropriately assess just compensation to the affected individuals; and what processes can on the other hand protect taxpayers in general against takings of their own property to favor specific individuals, harming the general welfare?
  5. In your current legal opinion, which areas of administrative adjudication in which Congresses currently control the exercise of judicial powers without due process of law [26] are unconstitutional?

If most current senators don’t support constitutionalists for the Supreme Court, we the people can live with a vacancy or vacancies until we elect new senators who will.

We need at least some presidents and senators who don’t game the outcome but just do the right thing and let the chips fall as they may. If at least some presidents and senators currently will do due diligence before filling a seat [27], then we still have some representation and a conceivable path to elect more senators who will.

But if no presidents and no senators request information about prospective nominees’ support for the Constitution, and provide informed nomination, informed advice, and informed consent, then we the people are being subjected to rule with no representation, and the current governance by the people in all branches of the national government is illegitimate.

References

  1. Alexander, Patricia A., and Judith E. Judy. “The Interaction of Domain-Specific and Strategic Knowledge in Academic Performance.” Review of Educational Research, vol. 58, no. 4, 1988, pp. 375-404.
  2. USA Constitution, art. III, sec. 2, cl. 2.
  3. USA Constitution, art. II, sec. 2, cl. 2.
  4. USA Constitution, art. VI, cl. 3.
  5. Eastman, John C. “The Limited Nature of the Senate’s Advice and Consent Role.” University of California Davis Law Review, 36, no. 3, Feb. 2003, pp. 633-66.
  6. USA Constitution, art. VI, cl. 2.
  7. Anthony, James. rConstitution Papers: Offsetting Powers Secure Our Rights. Neuwoehner Press, 2020, p. 4.1.
  8. USA Constitution, amend. 5, life, liberty, or property.
  9. Anthony, James. rConstitution Papers: Offsetting Powers Secure Our Rights. Neuwoehner Press, 2020, pp. 9.2-4.
  10. USA Constitution, art. I, sec. 8, cl. 11, declare war.
  11. USA Constitution, art. I, sec. 8, cl. 11, marque and reprisal.
  12. Anthony, James. rConstitution Papers: Offsetting Powers Secure Our Rights. Neuwoehner Press, 2020, pp. 11.15-20.
  13. USA Constitution, art. II, sec. 3.
  14. USA Constitution, art. IV, sec. 4.
  15. Diamond, Martin. “The Forgotten Doctrine of Enumerated Powers.” Publius, 6, no. 4, Autumn 1976, pp. 187-93.
  16. USA Constitution, art. II, sec. 1, cl. 1.
  17. Anthony, James. rConstitution Papers: Offsetting Powers Secure Our Rights. Neuwoehner Press, 2020, pp. 5.2-6.
  18. Lawson, Gary. “Delegation and Original Meaning.” Virginia Law Review, vol. 88, no. 2, Apr. 2002, pp. 327-404.
  19. USA Constitution, art. I, sec. 1.
  20. Schoenbrod, David. “Goal Statutes or Rules Statutes: The Case of the Clean Air Act.” UCLA Law Review, 30, 1983, pp. 740-828.
  21. Khan, Ali. “The Evolution of Money: A Story of Constitutional Nullification.” University of Cincinnati Law Review, vol. 67, 1999, pp. 393-443.
  22. Timberlake, Richard H. “The Government’s License to Create Money.” Cato Journal, 9, no. 2, 1989, pp. 301-21.
  23. Rothbard, Murray Newton. What Has Government Done to Our Money? 5th ed., Ludwig von Mises Institute, 2010, pp. 40-7.
  24. Werner, Richard A. “A Lost Century in Economics: Three Theories of Banking and the Conclusive Evidence.” International Review of Financial Analysis, 46, 2016, pp. 361-79.
  25. Epstein, Richard A. “An Outline of Takings.” University of Miami Law Review, 41, 1986, pp. 3-19.
  26. Hamburger, Philip. “The History and Danger of Administrative Law.” Imprimis, 43, no. 9, Sep. 2014.
  27. Natelson, Robert G. “The Government as Fiduciary: A Practical Demonstration From the Reign of Trajan.” University of Richmond Law Review, 35, no. 2, 2001, pp. 191-236.

James Anthony is the author of The Constitution Needs a Good Party and rConstitution Papers. Mr. Anthony is a chemical engineer with a master’s in mechanical engineering.

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