Activist Judges Undermine Government by the People
Last week the California Supreme Court struck a body blow to the principle of government of the people, by the people and for the people.
The state's high court struck down a ban on same-sex marriage passed by a whopping 61.4 percent of voters in 2000. By a slim 4-3 majority, the court nullified the vote of the citizens of California and substituted its own judgment for that of the people. The court ruled that the ban violated the equal protection clause of the constitution because it discriminated on the basis of sexual orientation. Never mind that, since time immemorial, marriage has represented the union of one man and one woman. And never mind that the California Constitution does not create an exception to the rule for same-sex couples.
The American people have become all too familiar with the drill. The legislature passes a law banning abortion and the court overturns it. Children try to pray in school and the courts forbid it. The citizenry takes a stand for heterosexual marriage and the courts undercut it, branding them "bigots" in the process.
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Activist judges are substituting their judgment for that of the American people and undermining the right of the people to govern themselves. In doing so, they are misrepresenting the requirements of the Constitution, and the American people are standing idly by as if there is nothing they can do about it. The other two branches of government—the legislative and executive branches—are standing idly by as well. Indeed, they have aided and abetted the judicial usurpation of authority by cowering at the feet of judges who are misrepresenting the provisions of the Constitution. The elected branches have done nothing to implement the checks and balances available to them to rein in a runaway judiciary. They simply furrow their brows and wring their hands while judicial activists run away with our democracy. In its place, these activists are substituting a judicial oligarchy.
Some believe that the solution to the problem is to pass constitutional amendments aimed at overturning the court decisions. They believe that adding new words to our state and federal constitutions will solve the problem. They are wrong!
There is nothing wrong with our existing federal and state constitutions. What is wrong is that judges are wrongly misrepresenting the requirements of these documents. Indeed, they are rewriting the documents by misconstruing them in order to satisfy their own social and political agendas. Through remarkable powers of extrasensory perception they divine new meanings in the words of the foundational documents and perceive rights that are not to be found in the texts themselves. Newly-found rights to privacy are gleaned from existing documents and those rights are translated into the right of women to kill their innocent unborn children and of venal husbands to starve their disabled wives to death. Equal protection of the law means that same-sex couples have a right to marry regardless of how noxious that notion is to the majority of our citizens and notwithstanding the destructive impact of such a ruling on the family, the foundational unit of civilization. These are judges who view words as wax to be shaped and fashioned to suit their own agendas. Is it reasonable to think they will be constrained by new words when they have failed to heed the meaning and intent of the existing ones? Do we really expect that these judges will fall prostrate at the feet of the new words and submit to their plain and ordinary meaning?
This contest is not about words, it is about wills. It is about the wills of activist judges intent on fashioning a society to fit their own vision, and it is about the will of the people and their elected representatives who used to cherish and believe in the right to self government. Do we still have the will to govern ourselves? Or will we submit like sheep to judicial elites who think they know what's best for everybody else? Will the executive and legislative branches, acting like co-equals, step up and rein in these errant judges, or will they blindly submit like a subordinate stepchild to a higher authority? Will legislators impeach judges who fraudulently misrepresent the requirements of our foundational documents? Will executives refuse to carry out the decisions of judges who make hash of the Constitution? Will voters refuse to retain judges who are unfaithful to the language and intent of the laws and constitutions? Will they insist on electing executives and legislators who will go nose to nose with the courts on the language and meaning of the laws of our states and our country?
Americans have not always had the view of judicial supremacy that prevails today. Thomas Jefferson acknowledged that judicial review included review of the acts of the President and Congress, but he thought those branches had a right to decide for themselves whether to accept the high courts' ruling. Andrew Jackson, disagreeing with a decision of the high court on an Indian removal issue spotlighted the differences between the role of the judiciary and the role of the executive when he remarked, "John Marshall has made his decision. Now let him enforce it." Abraham Lincoln, in the aftermath of the Dred Scott decision, acknowledged the danger of judicial despotism in his First Inaugural Address. Lincoln stated, "The candid citizen must confess that, if the policy of the government upon the vital questions affecting the whole people is to be irrevocably fixed by decision of the Supreme Court… the people will have ceased to be their own masters, having to that extent practically resigned their government into the hands of that eminent tribunal."
Judicial tyranny by any other name is still tyranny. Do Americans still have the will to resist it? Only time will tell.
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Ken Connor is Chairman of the Center for a Just Society in Washington, DC and a nationally recognized trial lawyer who represented Governor Jeb Bush in the Terri Schiavo case. Connor was formally President of the Family Research Council, Chairman of the Board of CareNet, and Vice Chairman of Americans United for Life. For more articles and resources from Mr. Connor and the Center for a Just Society, go to www.ajustsociety.org. Your feedback is welcome; please email info@ajustsociety.org.
