Monday, 14 April 1997
Judicial Tyranny

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Judicial Tyranny
Written by Samuel Francis

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Since at least the era of the Warren Court in the 1950s, the abuses of the American judicial system and the corruption of constitutional government by the courts have been major causes of concern for American conservatives. In the last few years, however, as federal courts have repeatedly struck down popularly and legally enacted laws intended to protect American liberties and have imposed their own rulings as laws on communities that never voted for them, more and more Americans are expressing alarm. To many, not only do the courts seem to be out of control and intent on establishing what legal scholars William J. Quirk and R. Randall Bridwell call "judicial dictatorship," but several court rulings seem to strike at the very heart of American republicanism, the concept of the consent of the governed.

Thus, in 1994 voters in California passed by a substantial margin the ballot measure known as Proposition 187, which denied most public benefits such as welfare to illegal aliens. Within a year, a federal judge ruled the law unconstitutional. Similarly, in 1996 the voters of California passed Proposition 209, a ballot measure that effectively abolished affirmative action programs and racial discrimination by the state government. Again, a federal judge ruled the new law unconstitutional — this time within three weeks.

In Colorado in 1992, voters passed an amendment to the state constitution that prohibited local jurisdictions from adopting laws that forbade discrimination on the basis of sexual orientation. The purpose of the measure, known as "Amendment 2," was to deny special legal protection and privileges to homosexuals and to protect the rights of those who refuse to do business with them — such as landlords. Federal courts, including the U.S. Supreme Court in its 1996 decision Romer v. Evans, ruled that Amendment 2 is unconstitutional.

The list, of course, could be extended endlessly: the 1973 Supreme Court ruling in Roe v. Wade, which legalized abortion in all 50 states; the 1989 ruling in Texas v. Johnson, which struck down laws in 48 states that made burning the U.S. flag a crime; rulings mandating forced busing, preventing prayer in school, prohibiting public display of religious symbols, ordering local prison systems to release convicted criminals, commanding traditionally all-male schools like the Virginia Military Institute and South Carolina's Citadel to admit women as cadets, and on and on. Although such "judicial activism" is by no means new, it has become particularly alarming in recent years as the courts seem to be intruding into areas where they have never gone before and at the very time when citizen activism has achieved major political victories through effective organizing within the political system. Several of the most controversial court rulings — on Propositions 187 and 209 and Amendment 2, for example — have targeted the direct results of such activism by citizens determined to resist the encroachments of liberalism on their freedom and safety. No sooner has such conservative activism proved to be successful in the political arena than the courts, impervious to public opinion and pressures, have leaped into the breach to block it.

Although some Americans, alarmed and frustrated by such judicial arrogance, have begun to talk about civil disobedience or even armed resistance to the courts, that kind of response is both unwise and unnecessary. What is necessary to end the "judicial dictatorship" is to restore in our courts, our elected officials, our legal profession, and among our citizens as a whole an understanding of and commitment to the principles of American federalism as the U.S. Constitution enshrines it and as the Framers of the Constitution intended it. Judges are not the only ones who have forgotten what the authentic federalism of the Framers means, and if many of our lawmakers — including many conservatives — had not also forgotten its meaning, the problem of a court system out of control would never have arisen.

Authentic federalism proceeds from one of the fundamental principles of the U.S. Constitution — that the states themselves are the basic units of the federal union; that while the states under the Constitution surrender certain specified rights to the federal government, they retain all the other rights not explicitly surrendered, as guaranteed in the Ninth and Tenth Amendments to the Constitution; and that Washington — the federal government, whether in its executive, legislative, or judicial branches — has no rights or powers whatsoever except what the states under the Constitution have explicitly granted it.

Judicial revolution in the United States — the process by which the federal courts and especially the Supreme Court have appointed themselves the virtual dictators to determine which laws are valid and which laws are not, without reference to the wishes of voters or lawmakers or even to the text of the Constitution — consists precisely in overturning the authentic federalism of the Constitution and the states' rights it protects. In virtually every area where the courts have intruded, their rulings have sought to strip the states and local governments of their legitimate rights and powers and to grant illegitimate powers to the federal government. And, perhaps the saddest truth of all, the courts have been able to get away with this vast usurpation of power precisely because neither our elected lawmakers nor the citizens themselves have called them to account, and we have not called them to account because we have forgotten the true nature of our Constitution and the limits it places upon centralized power.

Since approximately the 1920s, the courts have made use of a variety of pseudo-constitutional doctrines and devices to override laws the judges disliked. One such device is the misinterpretation of the Constitution's Commerce Clause — clause 3 of Article I, Section 8 — which empowers Congress "to regulate Commerce with foreign nations, among the several states, and with the Indian tribes" — to justify federal regulation of virtually any activity that might remotely affect interstate commerce. While the original intent of the Framers in adopting this clause was mainly to prevent the erection of internal trade barriers between the states and at the same time reserve the right of the national legislature to restrict and regulate trade with foreign nations, the courts in the 20th century have used the same language for purposes that never occurred to anyone who supported the language at the time of its adoption.

Although the Supreme Court in the early 1930s adhered to a properly narrow interpretation of the Commerce Clause and thereby struck down several of the Roosevelt Administration's socialistic and centralizing laws (such as the fascistic National Industrial Recovery Act), Roosevelt himself proceeded to threaten to pack the Supreme Court if it did not show more deference to his demands. FDR's threat apparently had the intended effect, since the Court soon began to broaden its view of the Commerce Clause to uphold FDR's New Deal policies. In a classic statement affirming the new dogma, Supreme Court Justice Harlan Fiske Stone announced in a 1942 ruling, "The Commerce power extends to those intrastate activities which in a substantial way interfere with or obstruct the granted power." If the power to regulate trade among the states also includes the power to regulate not only trade but also "activities" within the states, then there is little Congress cannot do to manage the internal affairs of every state in the country. Under this doctrine, the High Court proceeded to uphold New Deal labor regulations and new federal regulatory powers that had long been held to be beyond the legitimate scope of federal authority.

In the 1960s, the same "commerce power" was invoked by the courts in upholding the 1964 Civil Rights Act and its prohibition of racial discrimination by private enterprise in hotels, restaurants, and theaters. Again, the uses that the court made of the original constitutional language had nothing to do with the intent of the language or of those who originally drafted and adopted it.

The concept of "original intent" as the only legitimate means of interpreting the Constitution (or any law) is crucial to grasping the nature of the judicial revolution. Original intent means that in interpreting the meaning of the Constitution or of any law we should look to what those who drafted and enacted the law intended the law to mean. Indeed, the concept of original intent is essential to the very concept of the rule of law, because if we depart from or ignore the intent of the lawmakers, we have no reliable guide to what the laws they passed really do mean. Liberal judges and justices regularly ignore original intent because they want to use the language of the Constitution and other laws to drive their own agenda.

Last year, retired Supreme Court Justice William J. Brennan, one of the architects of this judicial revolution, published an op-ed piece in the April 28 New York Times acknowledging his own abandonment of the original-intent principle. "I approached my responsibility of interpreting it [the Constitution] as a 20th-century American," Brennan recalled, "for the genius of the Constitution rests not in any static meaning it may have had in a world dead and gone but in its evolving character."

But the whole point of a written constitution lies precisely in its "static meaning." That, indeed, is the purpose of writing it down at all. By fixing its meaning in writing, the framers of constitutions try to render it impossible for governments to twist the meaning of the laws to suit their own purposes. If we were to adopt Brennan's view of the Constitution as an "evolving" document, then the whole concept of the rule of law — the rule of publicly known, commonly understood standards permanently encoded in the text of the statute — would become meaningless. The courts could simply impose on the language whatever meaning they wished, without regard to the original meaning of the language. But if the whole purpose of writing a constitution down and preserving records of the debates over its adoption is to fix its meaning, the whole purpose of justices like Brennan in abandoning original intent is to contrive sophistries by which the fixed and clear meaning of the constitutional text can be ignored and their own preferences imposed in the place of the law.

Lot more.........

http://www.thenewamerican.com/usnews/constitution/item/15053-judicial-tyranny