How the founders failed to prevent judicial activism

By Brent Smith

Dan “bag-a-donuts” Bongino was filling in on the Mark Levin radio program this past Wednesday. For those unfamiliar, bag-a-donuts is Dan’s “catch phrase.” He uses it to describe the “everyman.”

I love this guy, because he is the everyman. He’s smart but plainspoken, like a lot of us.

He was speaking of his confusion regarding the left. They claim, he says, to be so concerned that if Judge Brett Kavanaugh is confirmed to the Supreme Court, Roe v Wade instantly will be overturned – like the next day or something.

And Dan asks, if the left really thinks abortion on demand is settled law, why should they worry?

Well, they worry because the left understands how our current judicial branch works, which is why laws passed through the legislative branch mean very little to leftists. That’s what liberal courts are for – to strike down and rewrite anything with which they disagree. And this is why they are so panicked over the thought of the high court returning to one of self-restraint.

Bongino then dovetailed into legislating from the bench. He said it should never have happened.

“The founders did not think this was going happen” – legislating from the bench. “The founders were under the impression that each branch of government would jealously guard its power. That there was no way the legislative branch was going to cede those powers to the judicial branch of government, because they felt it was this natural human instinct to crave that power.” Dan says they had to check the power – they weren’t going to cede it. “They were more concerned about checks and balances than they were about people actually ceding power.”

He asks rhetorically: “How did the founders miss this? Why did the legislative branch voluntarily cede power to the judicial and why didn’t the founders see it coming?”

Because, he explained, “this was the Revolutionary generation. They had guts. They figured if you got elected, you were going to want to guard your power – you were going to want to do something in government. … They never assumed we’d get a bunch of gutless losers up in Congress and the Senate.”

Dan is both right and wrong on this issue. In fact, they did figure this would happen – they did see this as a possibility, just apparently not a probability.

Allow me to explain how the founders screwed up. I can’t believe I just said that, but it’s true. They had the solution to this potential problem, which they clearly foresaw, and chose not to include it in the Bill of Rights.

I would venture to say that a majority of Americans, and possibly Dan, don’t know about Article 16 in the original draft of the Bill of Rights, which I wrote about just this past April in an article entitled: “The Bill of Rights is Missing an Amendment.” The original list of 17 amendments were designated “articles” by their author, James Madison. Ten were ultimately ratified as the Bill of Rights by the end of 1791.

As I wrote in April:

“… there was one original Article that is desperately needed in today’s three-branch free-for-all environment. Sadly, it ended up on the cutting-room floor – didn’t make it past the second draft.”

This was Article 16, which read:

“The powers delegated by the constitution to the government of the United States, shall be exercised as therein appropriated, so that the legislative shall never exercise the powers vested in the executive or judicial; nor the executive the powers vested in the legislative or judicial; nor the judicial the powers vested in the legislative or executive.”

Had it not been scrapped, this Article would have solved the entire issue of “ceding” power from one branch to another, as it is a direct command expressly prohibiting the behavior. There is no gray area – no chance of misinterpretation by the left or right.

This is why I say that Dan was both correct and incorrect. The founders didn’t miss it. Instead it’s one of the rare times I can point to where they appear to have misjudged human behavior – and spineless politicians.

Can anyone say 28th Amendment?

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