One
of the greatest contemporary threats to the survival of republican
government arises from the courts. Increasingly, judges are behaving
like black-robed autocrats, not simply ruling upon the law, but
making law.
Consider
some recent controversial court rulings:
In California, the U.S. 9th Circuit Court of Appeals found the
Pledge of Allegiance unconstitutional because it refers to "One
Nation, Under God," allegedly violating the First Amendment's
"establishment clause."
In
Florida, the state supreme court threw out a law requiring parents
of minor girls to be notified before their daughters obtain an
abortion, this despite overwhelming public support for such a
common-sense provision.
Although
voters in Nevada twice in the 1990s passed an amendment to the
state constitution calling for a two-thirds supermajority of the
legislature to pass any tax increase, the Silver State's supreme
court ordered legislators to pass a $1 billion tax increase by
a simple majority. This ruling effectively disenfranchised the
voters of Nevada, stood the constitution on its head, and made
a mockery of popular self-government.
In
her opinion in the University of Michigan affirmative action case,
U.S. Supreme Court Justice Sandra Day O'Connor admitted that the
plain language of the 15th Amendment prohibits the government
from making any discrimination among citizens on the basis of
race. Nonetheless, Justice O'Connor asserted that a "compelling
state interest" in diversity trumps the plain meaning of
the Constitution.
In
Lawrence vs. Texas, the Supreme Court kicked open the door, as
Justice Antonin Scalia noted in his scorching dissent, to legalized
same-sex marriage, polygamy and other unconventional relationships,
thereby setting up a revolution in social norms despite the unwillingness
of the American people to undertake such an upheaval. Any day
now the Massachusetts Supreme Court is expected to legitimize
same-sex marriage.
These
and other outrageous cases -- will we soon forget the U.S. Supreme
Court rewriting the rules of golf for the PGA? -- suggest our
American system of separated powers, checks and balances, is seriously
out of balance. Although many of the people's elected representatives
are perfectly willing, even eager, to punt some of the most incendiary
issues to courts, the Framers of the Constitution never intended
for Americans to live under a judicial oligarchy in which berobed
despots issue decrees like so many Mogul potentates.
The
notion of judicial supremacy, that the court has the final say
on the meaning of the law and Constitution, is nowhere to be found
in the thoughts of the Framers or the text of the Founding document.
It is a power the courts have arrogated to themselves over time
with little resistance from the legislative or executive branches
of government. Federalist 78 by Alexander Hamilton contains not
so much as a hint that the courts constitute the supreme branch
of government or that judicial rulings irrevocably settle issues
in dispute. Such a notion of unaccountable, unanswerable, unfettered
judicial power does violence to the whole notion of separated
powers.
The
Framers limited the power of the courts just as they did the powers
of the other two branches of government. Not only can the people
amend the Constitution, but the Congress also can limit the courts'
jurisdiction under the Constitution's "exceptions clause"
in Article III, Section 2, putting specific matters beyond the
reach of grasping judges (Federalist 81, also by Hamilton).
Even
so, the crisis of the courts is deeper than is widely recognized.
American
judges increasingly are looking to harmonize U.S. law and the
Constitution with European and international legal norms, thereby
threatening both our national sovereignty and the sovereignty
of the Constitution under which our liberties have been secured
for two centuries.
Denying
the federal courts jurisdiction under the Exceptions Clause may
be the best option available to rein in a runaway judiciary. As
Justice O'Connor's opinion in the affirmative action ruling illustrates
(as does the Nevada court's lawless order in the tax case), many
judges are willing simply to ignore constitutions and the expressed
will of the voters.
Amending
the Constitution would be a waste of effort in the face of an
activist court majority determined to rule by judicial fiat and
to run roughshod over the basic law to achieve desired social
ends. Such despotic jurisprudence would not be restrained by any
constitutional amendment, as Justice O'Connor's affirmative action
ruling proves.
The
executive branch, too, should begin exercising its constitutional
responsibility to provide a check over a rogue judiciary. Again,
as Federalist 78 notes, the judiciary possesses neither the power
of the purse nor the sword. It depends upon the power of the executive
to execute its orders. But the executive, no less than the judicial,
has sworn an oath to defend the Constitution. Thomas Jefferson
refused to enforce the Alien and Sedition Acts even though the
Supreme Court held those egregious laws to be constitutional.
And Abraham Lincoln refused to abide by Dred Scott, holding that
the court's rulings were binding only upon the immediate parties
to the case. As Lincoln noted, if the Supreme Court's decisions
irrevocably resolve issues, the people will have ceased to be
their own rulers and resigned their government into the hands
of judges.
The
fiction of judicial supremacy, often cloaked in the guise of a
high-minded though self-serving assertion of "judicial independence,"
poses a direct threat to self-government. The proper balance between
the branches of government, as envisioned by the Framers in the
separation-of-powers doctrine, must be restored if our American
experiment in popular self-government is to prosper.
Richard
Lessner is executive director of the American Conservative Union.
