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.