American Values - Gary L. Bauer, President

Op/Ed Article Article

Displacing judicial tyranny

The Washington Times

06/07/1997

As spring turns into summer, the Supreme Court will hand down the remaining decisions for its 1996 term.

Those of us fighting the cultural wars are watching closely. Each Monday morning meeting of the justices brings the prospect of new pronouncements that will enshroud fabricated rights with constitutional protection and shift the balance of power further away from the people to the unelected, an accountable branch of our government. This term's physician-assisted suicide and Religious Freedom Restoration Act cases present the court with such opportunities.

With increasing regularity, the judiciary distorts our Constitution while the executive and legislative branches stand idly by. This toxic combination of judicial deviance and legislative and executive malfeasance has poisoned America's founding principle of self-government. The federal judiciary has undermined the practice of representative government and is, in effect, ruling the country by its edicts. The Supreme Court is not alone in this judicial power-grab; lower federal courts are willing co-conspirators in the destruction of democratic rule.

Alexander Hamilton wrote in Federalist No. 78 that the main check on the judiciary was that it had "neither force nor will but merely judgment." He also wrote that the judiciary was the "least dangerous" branch of government and that the "liberty of the people can never be endangered [by the judiciary]." James Madison, elsewhere in the Federalist Papers, warned that combining judicial power with legislative and executive functions was the "very definition of tyranny." Recent history has proved Madison the wiser man.

In Missouri vs. Jenkins, we saw the Supreme Court approve judicial "legislating" by upholding a judge-mandated tax increase on the people of Kansas City. Last summer in Romer vs. Evans, the court nullified the right of the people of Colorado to bar special privileges for homosexuals under local laws, clearly an exercise of judicial will rather than judgment. And in Roe vs. Wade, the most notorious example of judicial activism, the Supreme Court invented a constitutional right to abortion against the will of the people, whose criminal statutes in almost every state were nullified instantly at the stroke of Harry Justice Blackmun's pen. In these cases, and so many others, the courts have strayed far from the limited role our Founding Fathers intended for them.

By adopting an understanding of the Constitution as a "living" document, our judges have given themselves a license to twist the Constitution into any form. The Constitution no longer means what it actually says but some derivative, based on what judges think it should say. The rejection of an interpretation of the law as it was written and originally understood invites arbitrary decisions of a tyrannical nature and is contrary to our democratic constitutional system.

Abraham Lincoln, in his first Inaugural Address, stated, "If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."

Lincoln spoke these words after the Supreme Court upheld slavery as constitutional, but his statement is applicable to the present day. One by one, on matters vital to the character of our communities and the nature of our great nation, arrogant judges have legislated from the bench to impose on us that which we would never have approved through that mainstay of a republic - the ballot. This judicial tyranny must end. We must wrest power away from those whom George Will so aptly called our "robed masters" and become once again a people who insist that no one govern us without our consent.