The Supreme Court, which has just begun its new term, is one liberal away from jettisoning democracy and enacting legislative policy via judicial fiat. Rather than accepting these usurpations as the “law of the land,” Republicans should reject automatic respect and obedience for the judiciary, and restore the court’s coequal status with Congress and the presidency.
The functions of the judiciary are constitutionally vague. The Constitution’s Article III contains only 377 words, versus roughly 1,000 for the executive and 2200 for the legislative. The Supreme Court was left to define itself, which it did in Marbury v. Madison, establishing judicial review. The early court followed Alexander Hamilton’s charge that its duty “must be to declare all acts contrary to the manifest tenor of the Constitution void.” The court continued to evolve, however, eventually metastasizing into its present lawlessness.
Despite whether one supports the policy shifts of Supreme Court decisions, the court was never meant to be a vanguard of social or political change. The drafters of the Constitution knew the judiciary “may substitute their own pleasure to the constitutional intentions of the legislature,” but they took for granted that Congress and the president could simply ignore it:
The judiciary . . . may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. –Alexander Hamilton, Federalist No. 78
President Jackson famously declared, “[Chief Justice] John Marshall has made his decision; now let him enforce it.” While nullification or non-enforcement of court opinions by the executive is exceedingly rare and potentially disruptive, there simply aren’t many other options available if the United States is to avoid or overturn effective oligarchic rule.
The Situation Has Gotten Completely Out of Hand
Impeaching a justice and removing him or her from office requires a majority vote in the House and two-thirds in the Senate. Passing a constitutional amendment requires two-thirds of both legislative houses plus three-quarters of state legislatures. Opponents of judicial activism are at a nearly impossible disadvantage, especially when lawless decisions enjoy the support of vocal minorities amplified by a partisan media.
Article III includes language authorizing Congress to add or subtract classes of cases from the court’s jurisdiction. The Detainee Treatment Act (2005) stated “no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” Yet that is precisely what the court did in Hamdan v. Rumsfeld. A court that voids the plain language of the Constitution or invents new rights where none exist will treat jurisdictional niceties as a mere speed bump on the road to power.
Hamilton was mistaken when he wrote that the court was “the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” The Founding Fathers were among the greatest minds ever to put forward a governing document but, to quote John Adams, “[the] Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” The Left is neither moral nor religious, and will stop at nothing to achieve its utopian vision. Conservatives are fools to abide by unwritten rules when liberals threaten their liberties with the raw exercise of power.
The federal government has morphed from a system of coequal branches to a pyramid structure wherein the judiciary sits atop the other two branches and hands down edicts increasingly divorced from constitutionality and common sense. One needn’t contemplate what the late Justice Antonin Scalia referred to as the “mystical aphorisms of the fortune cookie” to recognize that the present Supreme Court often tortures reason to arrive at pre-determined outcomes; and that is without the addition of a solid liberal fifth justice. What fresh hell awaits?
Judicial activists skip over the actual words of the Constitution and ignore their original meaning, relying instead upon incremental precedents, which mask long-term damage to the rule of law. From a policy perspective, no state should prohibit contraception, but that does not mean the Constitution grants the “right to privacy” as expressed in Griswold v. Connecticut. The construction of novel and unenumerated rights in Griswold led the court to constitutionalize abortion in Roe v. Wade, radicalizing an issue that the democratic process would have resolved.
Even Conservative Justices Abuse Their Power
The Supreme Court arrived at the right to homosexual marriage in Obergefell v. Hodges by preceding it with the right to sodomy in Lawrence v. Texas. The latter overturned Bowers v. Hardwick, but activists do not consider precedents to be binding when ratcheting jurisprudence leftward. Writing for the majority in Obergefell, Justice Anthony Kennedy cited the Fourteenth Amendment’s prohibition against depriving liberty without due process, and defined liberty to include “intimate choices.” Perhaps liberty ought to include such choices, but that was not the Supreme Court’s decision to make.
Kennedy has no right to redefine age-old concepts of liberty simply because he enjoys playing Santa Claus to a politically correct constituency. While many might view Kennedy’s expansive view of liberty as harmless, it does in fact constrict the freedom of those who oppose the policy and their right to due legislative process from their elected officials. President Obama obviously applauded the decision; his job was to reject it.
In NIFB v. Sebelius, Justice John Roberts salvaged Obamacare’s individual mandate by arguing that the government “does not have the power to order people to buy health insurance,” but it “does have the power to impose a tax on those without health insurance.” Roberts attempted to refute Justice Marshall’s axiom in McCulloch v. Maryland (1819) that “the power to tax involves the power to destroy.” In offering no limiting principle to government compelling activity by punishing inactivity, Roberts left the gate wide open to a new frontier of abusive power.
Deeper into Wonderland, the Justice Department is suing North Carolina for passing a law requiring people to use public restrooms that correspond to their legal sex. How many Founding Fathers would have signed the Constitution if they had known it would be used for this cause? The Left uses judicial review to deconstruct the Constitution and the natural law whose spirit it embodies. Their purpose is not to expand freedom for the beneficiaries of “new rights,” but to criminalize dissent by stripping protections from those who oppose them.
Progressive jurisprudence could best be described as cantilevered justice: piles of ever leftward-leaning precedents stacked upon one other, each a derivative of the imaginary rights preceding it. The structure is built on air, possessing no foundation in the text of the Constitution; one swift kick would send the whole rotten edifice crashing down. This would actually be less disruptive than one might suppose—what the Supreme Court has made legal would stay legal in the absence of legislative action against it—but it would half the Left’s judicial aggression.
Stop Enabling A Rigged System
Conservatives are mistaken in taking the Left’s legal arguments seriously, and answering them as though they were worthy of debate. The concept of the “living Constitution” is a fraud, and those who perpetrate it are themselves criminals, committing a form of treason against our constitutional order.
Each member of Congress and the president swear an oath of office to “preserve, protect and defend the Constitution.” There is no escape clause stating “except when the Supreme Court shall decide the Constitution is not what it is, or is what it isn’t.” If the court makes a blatantly unconstitutional decision, the president is not obligated to enforce it. In fact, he is obligated not to enforce it.
Should the court persist in its lawlessness, the president should recommend to Congress impeaching and removing serial offenders. It matters little whether Congress acts upon his recommendation; the Supreme Court relies not upon their inherent powers, but upon the perception of their superior judgment.
Ignoring or actively denouncing Supreme Court decisions is not a step to take lightly, but conservatives should not be bullied into whatever ukase crawls out of left-wing fever swamps. The absolute supremacy of the Supreme Court is a chimera, a bluff that over time has acquired the patina of power, but can vanish in an instant, leaving those who would use that court for lawlessness bereft of legitimacy.
The Supreme Court must be forced to consider whether it will face the nightmare of having their opinions disowned and themselves (temporarily) relegated to a toothless advisory board. This is not a failure of our constitutional order. This is our constitutional order, one the Framers clearly envisioned, but neglected since. Those who insist that a president or members of Congress must obey and promulgate unconstitutional diktats also support our elected officials perjuring their oaths of office by failing to defend the Constitution.