I am neither an attorney nor an expert in Constitutional law. Others have been good enough to say I am a good strategist. If so, then I would like to share my perspective of the current state of the judiciary. I have listened as a debate is occurring over the proper powers of the courts and the tendency of some Americans to cede to the advocates of unrestrained judicial power victories to which they are not entitled.
I am occasionally referred to as a "founder of the modern conservative movement." Such an honor places upon me and others to whom such a description applies a special duty to warn our fellow citizens. Americans today are witnesses to the realization of the great fear of our Founding Fathers: the passing away of government "of the people, by the people, for the people," as President Abraham Lincoln stated, in the United States of America. With respect to the courts, we need a revival of the rule of law based upon the constitutional principles laid down by those who founded this nation.
Our forefathers gave their lives to liberate us from the rule of a British Parliament unelected by the American colonists:
Governments are instituted among Men, deriving their just powers from
the consent of the governed.... But when a long train of abuses and
usurpations, pursuing invariably the same Object evinces a design to
reduce them under absolute Despotism
The grand formalities of American election rituals hide a glaring fact:
Americans can no longer claim that we are our own rulers in every
circumstance in which we are empowered to be. Regardless of our votes,
the defining judgments in our collective and personal destinies often
are made by persons whom the American people have not elected to rule.
We gave judges their robes and gavels so that they might resolve
specific disputes between specific plaintiffs and defendants. We never
gave them authority to issue commands to our elected lawmakers, forcing
us down roads which we have not chosen to travel. Judges have no
constitutional authority to make laws or to amend our national and state
constitutions. They have no authority to redefine words and concepts in
our laws to mean what they and their ideological partisans wish for them
to mean.
To Americans of previous generations this was obvious and fundamental.
But for many in America today, this is meaningless, a mere technicality:
judges are supreme because, well, because they just are.
When several judges opined that there ought to be no more prayer in
American schools, lawyers, politicians and journalists told us that
after three centuries of prayer in our schools, judges had suddenly
"outlawed" it. Court opinions interpreting law and social custom
magically became the law itself.
After three centuries of Americans exercising their right to control
their communities as citizens and to keep pornography out of public
view, several judges opined that the Founding Fathers had given
pornographers a right to pollute us and our children, a right that does
not exist in the United States Constitution. They put us on a course
that has almost obliterated the ideal of fidelity of body, mind,
imagination and the heart, upon which marriage, family and child-rearing
are built.
Nevertheless, lawyers, journalists and politicians announced that this
opinion was to be the new law though it had no basis in the Constitution
or in any law authorized by the American people via their chosen
lawmakers.
Likewise, judges - acting on behalf of a tiny, anti-constitutional,
self-styled cultural "elite" dedicated to turning America into an
ideological utopia - opined that the American people may neither protect
children from violent murder in their mother's womb, nor outlaw sodomy,
nor restrict their civic blessing upon marriage to nature's definition
of it, nor ensure that parentless children are placed with parents as
nature defines them: one father and one mother.
Nor should I forget to mention judicial disregard for centuries of
customary, legal and constitutional protection of private property in
order to provide legal sanction for powerful, corrupt politicians
lusting after other men's land or buildings. "Take what you please,"
they said in essence. And this was now the law. One hand washes the
other.
Many of us received in shock and sadness the Goodridge v. the Department
of Public Health of Massachusetts opinion on homosexual marriage. Why do
self-styled "conservatives," lawyers, politician and pundits among them,
spread the assertion that judges have powers that the American people
have never given them?
The truth is that the ruthlessly enforced illusion of judicial supremacy
did not merely empower judges and disenfranchise the American people. It
made journalists, lawyers and clever politicians more influential
culturally. Most, after all, are of the same ideological bent as many
judges. And those who were not, the "conservatives," played within the
new rules: judges' opinions are the law in the United States of America.
If Americans paid attention, understood what is at stake and agreed upon
the solution, their long-term strategy would require:
* an string of primary victories by candidates who fully grasp the
fact that judges have no authority to change our laws and who
aggressively will oppose all claims to the contrary;
* an unbroken series of triumphs by such constitutionalist
candidates in general elections, year after year;
* an unbroken series of nominations of judges who will interpret
the law and will reject the noxious and absurd myth that previous court
opinions are "the law of the land"; (Presidents Ronald W. Reagan and
George H. W. Bush gave us activists such as Sandra Day O'Connor, Anthony
Kennedy and David Souter!);
* an unbroken series of Senate confirmations of originalist
judges;
* unwavering constitutionalism by originalist judges in their
years on the bench, withstanding daily assault by infuriated cultural
"elites" who grew accustomed to using legally void and impotent court
opinions as bulldozers to deceive and enslave Americans via a-moral,
anti-constitutional and increasingly tyrannical judicial delusions.
Not a single signer of the Constitution (or of the Declaration of
Independence) would have taken seriously the purportedly "conservative"
view today that to restrain judges we need to replace them through
attrition over decades. That view, in my opinion, guarantees a victory
of the far left because it implies that the judicial branch is the final
authority on the law.
In his book and British Broadcasting Corporation series Civilization,
historian Sir Kenneth Clarke noted that after the dissolution of the
Roman Empire, scattered pockets of normalcy continued for a surprisingly
long time. How will we know, living in such "pockets of normalcy," when
our republic has collapsed? Has it already? Are we prisoners who still
think themselves free?
For the sake of this republic I urge my friends, fellow leaders and
Americans emphatically to repudiate the devastating myth that judges
have the power to make and redefine our laws. We should do so rapidly
and forcefully before our republic is replaced by the irresistible
tyranny of men and women who believe that nihilist elites should make
the rules and pass them to judges for formal announcement when the time
is ripe for the latest step into the post-rule of law, post-moral abyss.
Otherwise our "conservatism" will continue to be merely the rearguard
for subtle left-wing revolution.
The tragedy of how we have reached this point: in our desire for social
acceptance and respectability among the anti-constitutional, anti-rule
of law, anti-Christian, anti-family nihilist left, "conservative" elites
have abandoned the core principles of our Constitution. We have flouted
the warnings of the likes of Thomas Jefferson, who wrote:
To consider the judges as the ultimate arbiters of all constitutional
questions [is] a very dangerous doctrine indeed, and one which would
place us under the despotism of an oligarchy. ...The Constitution has
erected no such single tribunal, knowing that to whatever hands
confided, with the corruptions of time and party, its members would
become despots.
Alexander Hamilton was perhaps the strongest advocate of "judicial
review" - the right of judges to opine on our Constitution. But an
opinion on the meaning of the Constitution is merely an advisory opinion
to the legislative and executive branches of government. Not even
Hamilton imagined that the right to opine is a power to rule. Courts, he
pointed out, intentionally have been given no means of enforcing their
opinions, noting that the executive and legislative branches are not
compelled to obey false or dubious opinions. Therefore, he wrote:
...The judiciary, from the nature of its functions, will always be the
least dangerous to the political rights of the Constitution. ... [T]he
judiciary...has no influence over either the sword or purse; no
direction either of the strength or of the wealth of the society; and
can take no active resolution whatever. It may truly be said to have
neither force nor will....
Abraham Lincoln acknowledged that court opinions were binding upon the
specific parties involved and "entitled to very high respect and
consideration...by all other departments of the government." But like
the Founding Fathers, he utterly rejected the myth that judges' opinions
are the law of the land:
...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 instant they are made, in ordinary litigation between
parties, in personal actions, 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.
In the last century cultural elites created an illusion of judicial
power that would be unrecognizable to earlier Americans, lawyers and
laymen. After the American Revolution, the framers of the Constitution
rejected any judicial authority over the other branches of government.
I fear the conservative elites are putting the final nail in our coffin.
I know these men. They mean well. They are not pursuing their view out
of malice. They believe what they are doing is right. Nor do I associate
myself with some of their critics who often are accusatory, judgmental
and angry. I look at results, and it seems to me that proponents of the
status quo are allowing the legal profession and the courts to impose
moral and civil codes which cannot pass federal and state legislatures.
They foolishly are handing absolute power to anti-Judeo-Christian,
anti-family ideologues.
This is where the trajectory of the post-constitutional pragmatism
undergirding the "conservative revolution" has taken us. The story is
not yet complete, but if we continue on this trajectory we may reach the
point of tyranny and persecution. History reveals this to be true.
Many of those with whom I have worked for years unwittingly are aiding
the far left in the destruction of America. It is time for our
presidents, governors, legislatures and prominent citizens to call the
bluff of impotent judges as Jefferson did and to ask them, as President
Andrew Jackson did, how they will enforce their impotent opinions. The
myth of judicial supremacy cannot justify governors violating state and
federal constitutions, their oaths of office and the sovereignty of the
American people. Look at the way so-called gay marriage has been imposed
by judicial fiat, running ruthlessly over elected legislatures and the
will of the people.
The Massachusetts Constitution contains the quintessential statement of
the American form of government: "The power of suspending the laws, or
the execution of the laws, ought never to be exercised but by the
legislature...." (Part the First, Article XX.) "[T]he people...are not
controllable by any other laws than those to which their constitutional
representative body have given their consent." (Part the First, Article
X.) "The judicial shall never exercise the legislative and executive
powers, or either of them: to the end it may be a government of laws and
not of men." (Part the First, Article XXX.) "All the laws which have
heretofore been adopted, used and approved...shall still remain and be
in full force, until altered or repealed by the legislature...." (Part
the Second, Article VI.)
Americans must debunk the Orwellian lie that has obliterated
self-government in the United States and acknowledge Lincoln's words at
Gettysburg in 1863:
Now we are engaged in a great civil war, testing whether that nation, or
any nation so conceived and so dedicated, can long endure.... It is for
us the living...to be here dedicated to the great task remaining before
us - that from these honored dead we take increased devotion to that
cause for which they gave the last full measure of devotion - that we
here highly resolve that these dead shall not have died in vain - that
this nation, under God, shall have a new birth of freedom - and that
government of the people, by the people, for the people, shall not
perish from the earth.
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