Skip to content
Breaking News Alert House Republicans Fail To Hold Merrick Garland In Contempt Of Congress

America’s Reign Of Judges Has Left Us With An Unrecognizable Constitution

judges Elena Kagan

This is an excerpt of “The Stakes: America at the Point of No Return,” out from Regnery this week.

“Kritarchy” is a Greek neologism that means “rule of judges.” Strictly speaking, we don’t live under a regime in which judges rule alone.

It’s more precise to say that modern American judges are a vital node of the neoliberal oligarchy who exercise far more power than they ought to have, in ways the founders never intended.

According to the parchment, judges are supposed to rule on individual cases and — in extraordinary circumstances — may invalidate laws that clearly flout the plain text and meaning of the Constitution. This is not what our judges actually do. They profess themselves loyal to the Constitution, in part as a diversionary tactic but also in part out of genuine sincerity. The problem with their sincerity is that their loyalty is not to the actual Constitution but to a rival constitution of the left’s own devising. That constitution is not written in the same manner as the formal Constitution, but neither is it completely unwritten. Its tenets are explained in various books and journal articles, in certain laws, and in administrative rules.

But mostly they are memorialized in judicial rulings that purport to interpret the de jure Constitution but which really outline the parameters of today’s true, de facto constitution. I was unable to identify who coined the term “legislating from the bench,” but it’s an apt description of what modern judges do. Under the guise of “interpreting” the law, judges very often make the law, inventing new “rights” as they go.

Alan Dershowitz — lately a hero of President Trump’s impeachment show trial, but at heart a lifelong extra-constitutional judicial liberal — writes of his experience clerking for David Bazelon, long-serving chief judge of the U.S. Court of Appeals for the District of Columbia, which is widely regarded as the country’s second most powerful tribunal:

If a defendant deserved compassion but no writ of habeas corpus — or other formal legal remedy — was technically available to him, Bazelon would wink at me and order that I find some ground for issuing a “writ of rachmones.” Rachmones is the Hebrew-Yiddish word for “compassion.”

In other words, a judge who could find no support in law for the outcome he wanted resorted to his own personal sense of morality to achieve the desired result. That basically sums up the history of constitutional jurisprudence since the 1960s.

Kritarchs Contrive Their Own Constitution

The beginning of this trend is most often identified as the Supreme Court’s 1965 decision Griswold v. Connecticut, which invalidated a state anti-contraception law on the ground that it violated a non-enumerated yet somehow inherent constitutional “right to privacy.” But the United States Constitution does not mention a right to the former, nor does it require invalidating a properly enacted law against the latter. Those who believe there ought to be a constitutionally enumerated right to privacy have a constitutional remedy: Amend the Constitution. Similarly, those who oppose anti-contraception laws have a democratic remedy: Elect legislators who will repeal them.

Judges don’t like either of these remedies, partly because they can take a long time but mostly because they are, in many cases, not likely to occur at all. Kritarchy is a means to an end, the end being the enactment and defense of the progressive elements of neoliberal oligarchy. If those policies can’t garner enough support to win popular or legislative majorities — or worse, are overturned by legislative majorities — the role of the judge is to impose them in the first case and reinstate them in the second.

So, for instance, when the people of California voted 60-40 to deny welfare benefits to illegal aliens, a federal judge blocked the measure on the ground that it violates the new, de facto constitution under which illegal aliens have not merely natural rights, but also American constitutional and civil rights. The people’s new law never took effect; judges rule.

Sometimes judges overturn popular will and invent new rights in the same action. After the U.S. Congress, followed by several states, specified in law that marriage is between — and only between — one man and one woman, judges not only invalidated all those laws but declared a constitutional right to same-sex marriage.

At other times judges block the implementation of lawful and constitutional executive branch policy. Witness, for instance, the continuing kritarchic assault on President Trump’s lawful order temporarily banning travel to the United States from countries with inadequate vetting procedures for their citizens. The rationale is, again, an alleged civil and constitutional right for foreigners to enter the United States.

Judges Snatch Executive Power

Another important role for judges in a kritarchy is to use sophistry to justify policies that are obviously unconstitutional under the actual Constitution or that contradict statute law. Perhaps the most famous recent example is the Supreme Court’s reimagining the Obamacare individual mandate as a “tax” to declare that the law passed constitutional muster. But the supreme example is the 42-year (and counting) effort to affirm that racial preferences are somehow not barred by federal law, which explicitly prohibits discrimination by race. The only consistent thread here is the end: The progressive outcome must always prevail.

Finally, the kritarchs sometimes even assume executive powers. This is typically done via consent decrees and the like, through which judges issue orders that municipalities, states, and sometimes even federal agencies must follow. For instance, judges have mandated bussing; directed cities to build schools in certain areas, even mandating how much those cities must spend; forced towns to build “low-income housing” and mandated where; and taken over prison systems and mental hospitals. To this day, judges dictate to the executive branch how it must deal with foreigners who enter or try to enter our country illegally.

Again, whatever one thinks about any of these policies — though I need hardly add that kritarchy is never used for conservative ends — they are all properly enacted only through the elected branches of government. Kritarchy imposes them by fiat, without even the pretense of democratic accountability.