By Judge Robert M. “Bob” Burroughs. September 20, 2018. BLOWING ROCK, NC — The media is awash in the Brett Kavanaugh nomination to the United States Supreme Court. What’s going on?
Let’s do a little historical research before we address what I believe to be the real issue.
In 1787 the average life expectancy of a male or female in the American colonies was 36.5 years. Remember that number: 36.5 years. The average age of delegates to the Constitutional Convention of 1787 was 42.0 years. Remember that number: 42.0 years.
The framers of the U.S. Constitution decided to have three equal branches of government: executive, legislative, and judicial. However, in the 1803 the case of Marbury vs Madison the U.S. Supreme Court established the principle of “judicial review,” which meant the federal courts could review legislative and executive acts and declare them unconstitutional.
With Marbury vs. Madison, the Supreme Court made itself the “supreme” branch of government. No longer were there three equal branches.
Marbury vs. Madison made the US Supreme Court the sole and exclusive arbiter of what the law would be in the United States of America. No one realistically questioned the authority of the court to do this. The Court decided to do it and has done it ever since and no one has contested their authority to do this. The American political body acquiesced in the ruling and for the past 215 years that has been the way our nation’s system of government works.
Remember, we started with three “separate but equal” branches of government. With Marbury vs Madison, the Supreme Court made itself the supreme branch of government. No longer were there three equal branches.
In my opinion, when the delegates were meeting in 1787 and deciding on the three branches of government they did not envision man setting foot on the moon, much less open heart surgery or organ transplants or the miracle of modern drugs. No, they saw their fellow man living an average of 36.5 years. The delegates’ collective age was much above the national average. The oldest delegate was Benjamin Franklin (81 years) the youngest was Jonathan Dayton (26 years). We know the average age of the delegates was 42.0 years. IN OTHER WORDS, The average delegate was already past the life expectancy of the time!
As the third “judicial” branch of government, the delegates set up a Supreme Court. They decided the justices would be appointed for life.
When the average life expectancy was less than 40 years old, could they envision a day when a person 50 years old would be appointed and serve on the court for another 30 or 40 years?
What did that mean to the delegates at the time? Did it mean a person forty (40) years old would be appointed and they might live another two or three years? Could they envision today, where a person fifty (50) years old is appointed and, through the marvel of modern science and medicine, they would serve on the court for another thirty or forty years?
There are nine (9) justices on the US Supreme Court, but it takes only five (5) of them to decide what the law of the land will be.
So, in a real case scenario, five people — who were never elected by the voters and who are appointed to their job for life — decide what the law of the land in the USofA will be. Five lifetime appointees tell 325+million Americans how to run their daily lives. The “alliance of five” can change from case to case, but this is the reality of today.
Now we know what the Kavanaugh brouhaha is all about. America’s politicians are waking up and beginning to realize that when you only have to persuade five people, you must be very, very, very careful who those nine people are sitting on the supreme judicial bench of the land.
The American people need to understand what is going on and what is at stake. Your daily existence and my daily existence can be controlled by five (5) people. Is this OK with you? If not, what do we do about it?
Judge Robert M. Burroughs (Ret.), North Carolina Superior Court, Charlotte, NC is a seasonal resident of Blowing Rock, NC