Imagine a football game in which the referee suddenly picks up the football, runs it into the Red Team’s end zone, and declares a touchdown for the Blue Team. When the Red Team protests, he just replies, “The NFL Rule Book says, ‘The referee is to see that the ball is properly put in play and shall decide on all matters pertaining to its position and disposition at end of down’ (Rule 15.2.3.).”
If the Red Team answers, “The referee carrying the ball down the field and scoring a touchdown is not what ‘decide on’ meant when that rule was written,” the referee will just reply, “Well, I’m saying that’s what it means today. The Blue Team’s touchdown stands.” The referee has suddenly created a new rule by giving the words a new meaning they never had before.
The current battle over the confirmation of Amy Coney Barrett to the Supreme Court is not a contest between Republican-favored justices who will enact conservative rulings and Democrat-favored justices who will enact liberal rulings. Rather, the contest is between Republican-favored justices who restrict themselves to interpreting laws and Democrat-favored justices who create new laws by their decisions.
The Supreme Court Has Wrongly Created New Laws
Judges are supposed to be merely referees, not create new laws and certainly not create new provisions in the Constitution. Yet in Roe v. Wade, the Supreme Court “discovered” a right to abortion in the Constitution, which says not a word about abortion. In Obergefell v. Hodges, the Supreme Court discovered a right to same-sex marriage despite the Constitution’s silence on the matter. In Lemon v. Kurtzman, the court created a restrictive three-part test for government interactions with religion, and this test led to outlawing several kinds of religious expression despite the Constitution’s explicit protection of the “free exercise” of religion.
Like a referee who scoops up the ball and scores a touchdown for his favorite team, these justices were creating new laws. Worse, beyond these decisions of the Supreme Court, there was no appeal, no opportunity for instant replay — the game was over.
This is why judge-made law is so dangerous for the future of the United States. Congress has never passed a law allowing abortion up to the moment of birth, or forcing recognition of same-sex marriage by every state in the Union, or prohibiting a coach from praying with a football team before a game. Indeed, these issues (and others) should have been decided one way or another by the people through their elected representatives, but instead, they were imposed on us by the Supreme Court.
Such judicial decisions are examples of the Supreme Court acting as a kind of “super-legislature” whose creation of new laws cannot be challenged, for the Supreme Court has the final word. Such decisions reveal an intent to nullify the crucial concept of a “separation of powers” that has protected us from tyranny for more than 230 years.
The authors of the U.S. Constitution understood the biblical concept of human sinfulness: in every human heart, there is a tendency to do what is good as well as to do evil. ln the narrative history of Israel, even good kings such as David and Solomon fell into wrongful conduct (2 Samuel 11; 1 Kings 11). The apostle Paul wrote, “All have sinned and fall short of the glory of God” (Romans 3:23). This truth about human nature was evident when James Madison wrote in Federalist No. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
So it was exceptionally wise that the U. S. Constitution structured a kind of government in which no one person or group could accumulate too much power. The idea of a separation of the immense power of government into various parts was essential for that task.
Separation of Powers Is a Strong Guard Against Tyranny
Unlike many other countries, America has — thus far — resisted falling into the hands of a malevolent dictator. The primary reason is the separation of powers. The immense power of government is divided between the legislative, executive, and judicial branches, and between the national government and state and local governments.
Furthermore, the Bill of Rights guarantees that significant power will remain with the press and with individual citizens and groups. Ultimately, reigning over all three branches of government is the Constitution, which can only be amended with great difficulty.
As Madison wrote in Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” So the authority to make laws must be separate from the authority to judge the laws.
The Constitution says, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (Article 1, Section 1). The power to make federal laws belongs only to Congress, which is appropriate because members of Congress are accountable to the people through regular elections. This means laws must ultimately have the consent of the people they govern, a crucial protection from the kind of tyranny the American colonists endured under King George III of England.
If Congress passes a law that violates the Constitution, judges have the authority to strike down that law, thus providing an independent check on the power of Congress. If, however, federal judges begin to create new laws, there is no separate authority to stop them, and due to lifetime appointments they cannot be voted out of office. The separation of powers is then nullified at its heart.
Why We Need ‘Originalist’ Judges
What, then, can we do when the lower courts and the Supreme Court begin creating new laws on their own? One of the best solutions lies in appointing new judges and Supreme Court justices who will confine themselves to interpreting the law, and who will not create new “constitutional” provisions and new laws with their decisions.
This is why President Trump’s appointments of Justices Neil Gorsuch and Brett Kavanaugh, and now of Amy Coney Barrett, are so significant. They have proven track records of abiding by the original meaning of the Constitution and the laws; they are convinced “originalists,” and they join Justices Clarence Thomas, Samuel Alito, and John Roberts to make a potential 6-3 majority who share similar convictions.
These justices are not committed to enacting any agenda or any conservative laws. They are, hopefully, committed only to returning to the Congress and state legislatures the sole authority to make new laws. They are committed to restoring to our nation the separation of powers that has protected us for so long from tyranny.
This is no minor issue. This separation of the power to make laws from the power to judge conformity to the laws is essential to preserving our existence as a free nation with a government accountable to the people.
Democrats Favor Judge-made Laws and Court-Packing
Leaders on the political left, however, including all the significant leaders of the Democratic Party today, continue to support the idea that judges should essentially be able to make new laws according to what they think is the best for society.
They justify this by the theory of a “living Constitution” – the idea that the Constitution is not restricted to the original meaning of its words but changes over time. When Democrats fail to persuade enough of our nation to support their positions and have them passed by Congress and signed into law by the president, they do not hesitate to make an end-run around the Constitution through Supreme Court justices willing to declare such policies are already part of the Constitution.
Now, as Barrett nears her confirmation, several Democrats have promoted the idea of passing legislation increasing the number of Supreme Court justices from nine to 15 — allowing them a sudden ability to add six more leftist justices in line with their ideology.
This is, arguably, the most dangerous current threat to our freedoms as Americans. At present, Joe Biden and Kamala Harris are both refusing to explicitly answer whether they favor “packing the court,” which most likely means if they win the presidency and control of both the House and Senate, they would be willing to take this radical step. It’s worth noting that Harris told The New York Times she is “absolutely open to” the idea of increasing the number of judges on the Supreme Court.
This would give Democrats a 9-6 majority of leftist Supreme Court justices. By expanding the Supreme Court in this way, in one stroke they would nullify the 47 years of political work done by conservatives since Roe v. Wade to fill the Supreme Court with justices who hold themselves to the original meaning of the Constitution.
If that happens, we could be subjected to many new Supreme Court rulings on issues where Democrats until now have lost either in the courts or at the ballot box. Of particular concern is the prospect of making abortion up to the minute of birth legal in all 50 states, forcing companies owned by Christians to pay for drugs that cause abortions and for sex-change surgeries, removing the accreditation or the tax-exempt status of Christian colleges because of illegal “discrimination” if they will not hire homosexuals or transgender persons, punishig as “hate speech” any expression of dissent from the LGBT agenda, severely restricting or abolishing any school choice programs, and requiring all schools to allow biological males who claim to be transgender females into women’s sports teams, restrooms, and locker rooms.
As nearly every political issue could potentially be turned into a court case, the entire leftist wish list could eventually be enacted by the regulatory agencies and the courts, bypassing the need for Congress and the president to approve all new laws. And if Democrats pack the Supreme Court by adding six seats and gaining a 9-6 majority, there will be nothing we can do to stop them.
With no appeal beyond a decision of the Supreme Court, the threat of judicial tyranny is the single greatest reason to stop Democrats’ plans by voting for Donald Trump and Republicans in the upcoming election.