Sotomayor & COVID vs The Bill of Rights

I’m pleased to see that both Justices Sotomayor and Kagan, in their role as Supreme Court Justices, continue to maintain their coterie of progressive-activism. I believe it is critical to have these distinctions so that the Public can be exposed to, firsthand, the corrosive risk of ignorance. It’s perfectly fine to take a position of your choosing on any given issue however I do believe we owe one another a thoughtful and honest study of the choices we make so that we are completely aware of the effect our actions have on others.

Summary: The Supreme Court issued its ruling, just before midnight on Thanksgiving eve, striking down New York States COVID restrictions. The Court’s ruling blocked restrictions, among many others, on religious services introduced by Governor Cuomo as part of his/the States actions, presumably, to combat the spread/risks of the COVID virus. The Courts actions were in response to a case, brought by the Roman Catholic Diocese of Brooklyn (NY), which asserted that the Governor’s orders were violating the First Amendment Rights of Christians. Although the Justice’s decent is not at all specific as to the majority opinions legal defects I suspect that Justice Sotomayor intends to orbit about her progressive orthodoxy which would, as a matter of practice, routinely suspend the primacy of an Inalienable Right to that of the State including its all-encompassing panoply of “The Public Good” rhetoric, the First Amendment having no exception. True, I don’t agree with her blending of social-activism with that of the Judicial Responsibilities she’s entrusted with but it would be foolish for anyone to think that a Trier of Fact isn’t biased with or by any number of external influences the key, however, in the case of Juris Prudence is to be able to acknowledge the bias and be diligent in testing the objective clarity of a decision to insure you are perfecting the Law and not distorting it. The point being is this: Justice Sotomayor’s orthodoxy is on display throughout her body of published work and as such, speaks for itself.

Now then, let me offer a few points which I believe will be of value as we consider the following question: Who has ultimate authority? The State or the Sovereign? Think of this question from the following (perspectives): (1) Where no law, specifically to the issue at hand, exists. And, (2) When a law, regulation or even a Court order/decision is enacted that clearly violates an Inalienable Right or Ruling previously made by the Supreme Court. (Note: In this last question do understand that I’m not inviting a discussion that suggest you can simply ignore or incite violence over laws you don’t agree with; for now we’re merely confining the review to the judicial review process.)

  • First, let’s understand that the U.S. Constitution is not a document that defines the rights of Mankind or, for that matter, U.S. Citizens. If you believe this then you need to stop here, go read the Federalist Papers, anything written by John Locke and Thomas Paine, and then return.
  • The U.S. Constitution is a document that enumerates (only) those functions that the Government is charged with a sacred duty to perform, those areas (The Bill of Rights) that it is strictly prohibited from engaging in, legislating, barring, manipulating, restricting, regulating etc. and those, whatever remaining things there may be, which are then to be left to the States or the Individuals themselves (a.k.a., The 10th Amendment).
  • There is no single component of the U.S. Constitution that even remotely approaches the subject of “The Public Good” specifically where the function of the Government is to be asserted as a tool or regulatory-enforcement agency to impose its “will” upon One who has no equal or similar utility for regulating that “will” and its unchecked impact on said person. The “takings” clause (5th Amendment), and others, addresses this danger and addresses it by strictly prohibiting the government to act with no such attachment to restraint. Finally, the Constitution never seeks to disadvantage a Sovereign (you) and in so doing favoring the Government as then being the result.
  • The question is often asked; “But shouldn’t the government have the authority to keep people from doing things that are a threat?” I think the best way to answer this is by a question: If your aim is to remove the burden of personal responsibility from the human exercise of social interaction, at or in any category of the human experience, then you eventually eliminate the distinction that is, distinctly, the human experience. In many ways is many of the problems this Country faces is due, directly, to the use of the Law/Government as a mechanism for shielding one from personal responsibility? Absolutely!
  • If you are going to espouse the Ideals of Freedom and it’s expressing mechanism – Liberty – then you must also have the Freedom to be at Liberty to be a total idiot and then (also) be willing to trust your fellow humans to distance themselves from you precisely because you are (an idiot).

I understand the foundation of Justice Sotomayor’s position and I can accept that there will be those who follow along with it. My objection to this order of thought, however, is that in order for the Justice to enforce the ideology that her interpretational preferences portends would then her ambitions require an enforcement regime of the kind found accompanying the disorder of Totalitarian rule?

“Progressivism, like many ‘isms’ that are fostered in the hazy-aftermath of some substance-laced binge, soils itself in the light of day for one simple reason: It’s unsustainable.”

There is, I’ve considered, a collateral issue that is rarely (if ever) discussed and that is the motivating value of disadvantage; the ability to bank a kinetic political force based solely on the ability to stir the perception of disadvantage. Think of the political movements built completely on the ability of sell a “fear” to the public: War, BLM, ANTIFA, Inequality of all types, Social Justice and so on. Look at the power of illusion and then think of how essential the influence of the illusion(s) has become to the Political and now, even more than ever, the Judicial Process. Think of the massive amounts of wealth accumulated by Political Forces who’ve been successful at branding disadvantage? Some I’ve already mentioned but then think of specific individuals such as Angela Davis, Pelosi, the Bush Clan, John McCain, Mitt Romney, Al Sharpton, Clinton et al, Jesse Jackson, Obama and so on. Not a one produced a single recognizable and measured outcome of public good.

Finally, particularly in the COVID case, there is a very serious component in the discussion than rarely sees the light of day or as a favorite talking-points of the day: The clinical reliability of the data driving the Public Policy Narrative. Anthony Fauci is the perfect example for why the Courts should have little tolerance for “the-greater-good” policy narratives particularly in cases where the over reliance upon unproven scientific data begets deeply flawed public policy.

Progressivism, like many “isms” that are fostered in the hazy-aftermath of some substance-laced binge, soils itself in the light of day for one simple reason: It’s unsustainable. This is also why it is dangerous to allow these “isms” to take hold to the degree were the order of rational discourse is displaced by it. While it is, as a clarifying exercise, of immense value to tease a comparative analysis with an “ism” one must always remember to remain firmly in touch with a reliable foundation.

While revelations regarding the true nature and cause of the Virus will suffer the same level of insincerity as the JFK assassination I should hope that the American People (at least) will remain unwilling to surrender their sovereign rights and will remain committed to enforcing their will upon a system that is increasingly showing near total indifference toward the oaths they swore to uphold.

Should the State have the ultimate power to enforce its will upon you as a member of the “consenting governed”? If so, then how do you define the limits of the power particularly when you come to realize that the State has never surrendered back, to the “consenting governed”, a power it has confiscated from them, not ever!

So then, who has ultimate authority, the State or the Sovereign? Before you answer this question you might ponder the following: How do you think Justice Sotomayor might respond to you if you were to tell her that from this point forward, for the Good of Social Justice, that you and you alone will hereafter have ultimate say over every one of her future decision? And then, ask yourself just how functional would a System of Justice be under a condition such as this?

Curtis C. Greco, Founder

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