The Judiciary: Tyranny’s Active Agent
Have the Constitution’s checks and balances come unglued?
The First Things website carries a provocative essay by Richard John Neuhaus. The essay explores the contention that, as Anti-Federalists feared in the 1787-89 Constitutional ratification debate, the judiciary has come to be the dominant power in the Federal government.
Without exaggeration, it can be said that most of the activist, anti-traditional measures of government have been judicially imposed. Those have been predominantly aimed at outlawing Judeo-Christian morality, notably Roe v Wade and measures to banish spiritual religion from education and politics, while encouraging an accelerating descent into the cesspool of sensual gratification.
Such measures were judicially imposed precisely because there never has been sufficient public support for them to gain passage in Congress. Federal judges have simply legislated what, in their person opinions, the law ought to be.
The effect of judicial activism since the late 1950s has been an unconstitutional establishment of atheistic socialism as the official religion of the United States.
Beginning with Chief Justice John Marshal’s Marbury v Madison decision, the courts have increasingly exercised legislative power, overriding Congress. In the regard, see also Judicial Activism – Summary of Prior Postings.
The following are key excerpts from the First Things essay:
Budziszewski suggests we should pay more attention to the anti-Federalist writer who styled himself as Brutus and was probably New York’s Judge Robert Yates. Brutus claimed that the Federalists, and Madison in particular, were vastly overestimating the way in which their famous “checks and balances” would keep the judiciary from becoming the controlling power in the new political order.
Some readers will remember that there was a great brouhaha when, in November, 1996, First Things published a symposium titled “The End of Democracy?”
A lot of commentators overlooked the question mark. Contributors included Robert Bork, Robert P. George, Hadley Arkes, and Russell Hittinger, and the crisis was described as “the judicial usurpation of politics.” … In time, many critics, including Commentary, came around and agreed that, yes, there is something very much like a crisis and, yes, the courts, led by the Supreme Court, have gone a long way toward usurping the political (meaning mainly legislative authority) in this constitutional order.
In “Civilizing Authority,” Budziszewski quotes Henry de Bracton, the thirteenth-century English jurist who declared, Lex facit Regem—the law makes the king, not the king the law. The king is supreme within the system but not over the system. Budziszewski then notes the ways in which the anti-Federalist Brutus was prescient in seeing how, far from the courts being checked by the legislative and executive branches, the two latter branches would acquiesce and even collude in the protection and expansion of government power by letting the judiciary have the last word in saying what the Constitution means.
Thomas E. Brewton is a staff writer for the New Media Alliance, Inc. The New Media Alliance is a non-profit (501c3) national coalition of writers, journalists and grass-roots media outlets.
His weblog is THE VIEW FROM 1776
http://www.thomasbrewton.com/
Email comments to viewfrom1776@thomasbrewton.com
Thomas E. Brewton, who maintains this blog, had the great good fortune in the middle 1950s at Louisiana State University to study under two of the 20th century's great minds: Eric Voegelin in political science, and Walter Berns in Constitutional law. These two professors opened the door of education to a glimpse of Western civilization and of American political and social thought as they had been before socialism was unconstitutionally established as the official national religion of the United States in 1933. | More from Thomas Brewton
Stumble It!
December 28th, 2007 at 6:25 pm
Lex facit Regem, let’s face it, has produced a host of mad, bad Kings. As society at large has largely replaced Kings, the law has turned its attention to producing mad, bad societies. Maybe it is time for a new legal declaration: The Law makes its own Opportunities for Power.
December 28th, 2007 at 8:12 pm
So then, how DO we enforce the Constitution when the legislative and executive branches insist on violating the rights set forth therein?
Such as when the Newt Gingrich Republican Congress threw divorced fathers under the bus! And continued to expand the federal government in many areas outside Article I Section 8 and the Appropriate Legislation Clauses. My reaction to the 2006 election is “Thus ever to RINO’s”.
The failure to enforce the specifically enumerated rights: due process, equal protection, freedom from bills of attainder, freedom from slavery and involuntary servitude, the right of the people to keep and bear arms, freedom from excessive fines and bails, is a far more serious problem then letting a 17 year old girl get an abortion when her prom date proved more effective than she wanted.
The problem is not that the judiciary can enforce the Constitution.
The problem is the PERVERSITY of the judges who strictly enforce a right never agreed to by 2/3 of both houses of Congress and by 3/4 of the several states, abortion, while not enforcing those rights specifically agreed to.
I am sick and tired of so-called conservatives who go on and on about abortion while being thunderingly silent about the willful failure to enforce the specifically enumerated rights.
December 29th, 2007 at 7:08 am
The real problem is exactly the opposite.
The Courts sit on their hands and do nothing as Congress and the President endlessly violate the constitution.
The Courts have finally made some relatively limp wristed objections to the patriot act but it should have done much more, for example.
Roe v. Wade is an exception. The day in and day out status quo is that the Court sits on its hands while the other branches of government violate the constitution endlessly and eggregiously.
I like Jay Leno’s commentary. It went something like:
We are helping Iraq write a constitution.
Why don’t we just give them ours?
After all, we aren’t using it.
December 29th, 2007 at 10:15 am
The view I’ve developed from studying the downfall of the Constitution, marriage, and family is that the two parties run the country just as any two rival criminal organizations would. The judiciary is composed of people who have party affiliation, and follow the orders of the gang regardless of what the formal rules require.
When “reform” is driven by billions of dollars doled out to friends by Congress merely for the sake of corruption and the judiciary spits on the Constitution to allow it; i find simply blaming judges an inadequate explanation. Certainly, they should overturn laws that are unconstitutional, and deserve to have the blame for that squarely on their shoulders. But to conclude that the judiciary makes these changes on their own – out of thin air – is entirely wrong.