History and the Judiciary
By Paul M. Weyrich (07/11/08)
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, it is their right, it is their duty, to throw off such Government.... (Emphasis added.)
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.
Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation.
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