The Founders never intended for the Judiciary to be the final arbiter of social and political issues.
Everyone is rightfully focused on the rule of law crisis emanating from FBI Director James Comey’s outcome-based decision not to recommend the prosecution of Hillary Clinton. The sad reality is that we have a crisis in the rule of law across our nation’s courts every day – with unelected judges on districts and circuits created by Congress having the ability to serve as super-legislatures to enact policies that are unconstitutional and antithetical to our founding values.
We have a national emergency that in many respects poses more of an existential threat to our civilization than Islamic Jihad. Conservatives could strive to elect a Ted Cruz, R-Texas, Mike Lee, R-Utah or Jeff Sessions, R-Ala. to every governor’s mansion, every state and federal legislative office, and even as president – yet it won’t matter one bit unless the courts are put in their place.
I wrote my book last year warning of the imminent dangers of judicial tyrants legislating immorality and anti-property rights from the bench, but things have gotten even worse since I initially submitted my manuscript.
Conservatives are having an internal debate over whether Trump is the most destructive force for conservatism or whether he is the antidote to our problems. The truth is both arguments are wrong. If nothing is done about the illegal judicial oligarch, the consequences of the elected branches of government, including Trump as president, won’t matter much.
Consider the following acts of the lower courts just over the past few days – not even including the recent egregious decisions from the Supreme Court:
- Late last Thursday night, U.S. District Court Judge Robert Hinkle of the Northern District of Florida blocked Florida’s new law prohibiting taxpayer funding for Planned Parenthood and requiring a state inspection of medical records of abortion clinic patients. Evidently, private abortion groups under criminal investigation for trafficking baby organs now have an inalienable right to taxpayer funds – out of reach of the state legislature to regulate.
- On the same day, Judge Tanya Walton Pratt of the U.S. Court for the Southern District of Indiana blocked Indiana’s 2015 abortion law barring doctors from performing abortions solely because of genetic factors such as Down Syndrome, or the unborn baby’s race or sex. This same judge had previously blocked laws barring funding for Planned Parenthood.
- On Friday, Judge Carlton Reeves of the U.S. Court for the Southern District of Mississippi blocked sections of HB 1523, which merely protected state officials who hold a “sincerely held religious belief” from being punished for recusing themselves from “duties” that would violate their conscience, such as transgenderism and same-sex marriage. In an angry political manifesto, devoid of any constitutional jurisprudence, and indeed antithetical to fundamental rights (defined as “deeply rooted in history and tradition”) Judge Reeves codified transgenderism into the constitution, stating the decision was based on “the state’s attempt to put LGBT citizens back in their place.” As Mississippi state senator Chris McDaniel explained in an op-ed for CR, HB 1523, in fact, directs no state action and is merely a passive defense against illegal judicial action taken against those upholding the founding values of this country.
- After nullifying North Carolina’s entire congressional map in the middle of an election, even after ballots had already been counted, the Fourth Circuit Court of appeals is at it again. Last week, they invalidated the districts for school board in Wake County and even suggested cancelling November’s election altogether. This is after candidates have already spent an enormous amount of time and money running in the districts drawn by the legislature [see more at A.P. Dillon’s North Carolina blog]. As I noted earlier this year, the only thing worse than a legislative gerrymander is a judicial gerrymander in middle of an election. The courts have illegally made themselves the final arbiter of redistricting and they are disenfranchising voters by not applying their rulings uniformly in every state.
Folks, how much longer are we going to tolerate this fallacy that the modern legal profession – which holds our Constitution and founding documents to be unconstitutional – is the final arbiter of every social and political question of our time with the power of a council of revision?
It wasn’t supposed to be this way; it doesn’t have to be either
At the Constitutional Convention, our Founders rejected the idea of a Council of Revision.
The Judiciary was never supposed to be the final arbiter of all social and political issues, and in fact, was supposed to be comparatively the weakest branch of government.
Even those like John Marshall who believed in the power of judicial review never envisioned that every law passed by a legislature would be subject to a tribunal and that decision would be immediately and universally binding on the rest of the government and the people. Marshall believed that in “some” cases when a party had a grievance that needed to be redressed the law itself should be examined.
It only applied to laws that were manifestly against the Constitution as originally drafted. It certainly never applied to all political questions and was never meant as a green light for third party pro bono law firms to subject a law to judicial referendum.
Yet, laws that are manifestly against the Constitution, such as anti-carry concealed legislation, are the few laws the courts uphold.
It’s bad enough that we’ve replaced our representative Republic with a judicial oligarchy. What’s worse is that this oligarchy uses a set of political ethos that is antithetical to the Constitution as their blueprint for this robust judicial review.
Many people were shocked by Judge Posner’s comments about the Constitution being obsolete, but as I warn in Stolen Sovereignty, that is the view of the majority of lower court judges and, in most cases, five Supreme Court justices.
The time has come for states to simply say no to judicial tyranny.
Ironically, John Marshall himself promised the Virginia Ratifying Convention that state laws would not be hampered by the federal court system. I’m sure nobody in that room was even thinking about mandating transgenderism and alternative forms of marriage on the states.
In chapter 9 of Stolen Sovereignty I lay out the historical, legal, and philosophical case for Congress to restructure the jurisdiction of the courts and strip them of authority over broad social questions.
I’m here to warn you that there is no other choice within the current failed system. What else are we going to do? Appoint “conservative” judges? That ship has sailed a long time ago.
My concern is that if we raise the specter that everything hinges upon the next Supreme Court justice we will have expended all of our political capital for nothing. To begin with, it will be almost impossible to replace Scalia with a conservative if Democrats hold the Senate.
If Republicans maintain a small majority in the Senate, they will have to pull the nuclear option and abolish the filibuster in order to get an originalist confirmed because no Democrat will agree to confirm a true constitutionalist, making it impossible to garner the requisite 60 votes
Then what? After all that political investment, the Left will still have a 5-4 (and sometimes 6-3) majority on most issues. Moreover, as demonstrated by these cases, many important decisions are decided by the lower courts, which are already irrevocably corrupted.
Consider how hard it is to elect good state and federal Republican leaders and how much harder it is to get them to do the right thing.
Whatever they pass – be it a religious liberty law, an abortion regulation, an immigration enforcement law, a legislative map, etc. there is an army of rapacious lawyers to litigate every single law to death in the lower courts.
In most cases they will win, and even the few cases the Supreme Court agrees to hear wind up taking years and bankrupting the states over just a single reform.
There is a better way. Stolen Sovereignty will be released on July 19 in which I lay the foundation for the people through their elected representatives to finally counter the half-century long assault of the judiciary on the very fabric of republican governance.
It’s time to tell the courts to stew in the Gomorrah they helped create.