By Jeff Olson
Next week is the first Monday in October, the day that the U.S. Supreme Court convenes a new term following its summer recess. The term opens with the traditional chant of the court crier: “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.” Indeed!
There is no doubt that one of the most important and far-reaching decisions which a president will ever make (and the Senate confirm) is the judge(s) which he or she will send to the Supreme Court, as well as those in lower courts.
This can be readily observed in the past 70 plus years in which we have seen the Judiciary become the most influential branch of our government, especially where social issues are concerned. However, policy issues have also become more subject to Court jurisprudence and control.
While most of those who drafted our Constitution did not agree with nor incorporate the principle of judicial review, established in Marbury v Madison (1803), it nevertheless rendered limited harm until the 1930s. Prior to the presidency of Franklin D. Roosevelt, the courts were still largely populated with orientalists, who properly rendered legal interpretation based on construction of the Constitution’s original intent.
Since then, some of our leaders have exceeded the Constitutional limits upon the authority of their office. This then opened the door for the judiciary to follow the same path — to read into the Constitution what was necessary to make it conform to the demands of the prevailing political will, regardless of prevailing cultural norms and moral sensibilities of the people. The perpetuation and acceleration of this “living constitution” resulted in a document subject to all manner of judicial interpretation.
As Thomas Jefferson wrote in 1819, “The Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” The result has been the dismantling of the federalism built into the Constitution through the shift of state autonomy and sovereignty to more and more federal control.
James Madison, considered the “Father of the Constitution” said, “Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted bastardized form of illegitimate government.” Chief Justice John Marshall stated, “The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements.”
And, Justice Felix Frankfurter said, “As a member of this court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.”
Now contrast this with one of our chief justices who said that the Constitution is what the judges say it is. And when asked to describe his judicial philosophy, justice Thurgood Marshall is said to have replied, “You do what you think is right, and let the law catch up with you.”
This ideology was also seen in 1958 when the Court stated that the Constitution should comport with “evolving standards….that mark the progress of a maturing society.”
What is actually in question is whether we are a nation under the rule of law or under the rule of men. The great theologian Thomas Aquinas related the secular concept of natural law to the biblical concept of divine law. Both refer to an objective standard of morality and justice against which human laws are measured.
Without this understanding that law should be based on transcendent and unchanging principles of truth and justice, law then becomes nothing more than a construct and tool of government for social engineering through creating and enforcing social policies.
There are a tremendous number of cases in point which we could review showing how the Court has allowed ideology and pre-desired outcomes to replace principles and precedents, but it is enough here to state that if “We the People” have a desire to make a comeback to “the consent of the governed” then we had better be informed and active in this year’s elections and beyond.
Once again we return to Thomas Jefferson, “Nothing in the Constitution has given them (the federal judges) a right to decide for the Executive, more than to the Executive to decide for them…But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also in their spheres, would make the judiciary a despotic (tyrannical) branch.”
And Alexander Hamilton, one of the three authors of the Federalist Papers, the most authoritative exposition of the Constitution as understood by those who prepared and accepted it, stated in Federalist #78: “[The Judicial Branch] may truly be said to have neither FORCE nor WILL but merely judgment…..the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution…..[T]he judiciary is, beyond comparison, the weakest of the three departments of power……[and] the general liberty of the people can never be endangered from that quarter.”
Hamilton could make this statement with confidence because the Founders specifically withheld all policy-making powers from the judicial branch. Unfortunately, the other two branches (and we the people) have surrendered those powers to it.
Our Constitution was written and ratified “in order to secure the Blessings of Liberty to ourselves and our Posterity” as set forth in the Declaration of Independence.
Our forefathers established a republic designed and intended to protect those inalienable (God-given) rights and to reflect the consent of the governed; a nation of laws originating from the “laws of nature and nature’s God”, not men. In the words of Benjamin Franklin, “Only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.” At the close of the Constitutional Convention in Philadelphia, Franklin was asked what the delegates had given the country. He responded, “A republic…, if you can keep it.”
The election year of 2020 will be a crucial opportunity for you and I to make decisions which will determine to a great extent: if we “can keep it” OR will surrender it.