Our Judicial Oligarchy
The Supreme Court stole from all of us the right to govern ourselves.
In response to the U.S. Supreme Court’s same-sex marriage decision, much of social media instantly descended into a mob of gleefulness, unrestrained by reason or critical thinking. People were so ecstatic at the arrival of nationwide same-sex marriage that they could not realize what they were losing in the process.
Last Friday, the Supreme Court stole from them, and all of us, something fundamental: the right to govern ourselves.
The decision last week was not about whether gay marriage is a good or a bad idea. Reasonable people can disagree about that. The question was: who decides?
Do the people decide by debate and deliberation, through referendums, legislative action, protests, and other democratic activity? Or do nine lawyers decide the issue by majority vote, without accountability to the people?
Justice Kennedy’s opinion — which reads like a sociological treatise rather than a legal judgement — is nothing less than a sweeping assertion that constitutional text and history can be dispensed with when making judicial determinations.
All that really matters is which rights the Court sanctions and which it does not. As long as it can get away with overturning democratically-adopted laws by inventing new “liberties” out of thin air, it will do so.
This is a prescription for the end of democracy, as issue after issue will be removed from the arena of democratic choice and decided by judges. Just as it has now become impossible for any state to define marriage as the union of one man and one woman — a definition largely uncontested until 15 years ago — so too will other contentious issues be resolved by the decree of a Supreme Court impatient of democratic change. A Court with no special expertise on moral and policy questions has empowered itself to resolve political disputes over which it has no proper authority for 320 million Americans.
In this newly-minted world imposed upon us, no law, no matter how popular or long-standing, is safe from judicial nullification. Our democracy is now at the mercy of how activist the Supreme Court decides to be, from case to case. And there is little we can do to stop the judicial branch from doing as it pleases. A Court willing to cast aside a definition of marriage that was uncontroversial in this society until a few decades ago will ignore anything that constrains it from imposing its will on our country.
Those who approve of same-sex marriage might not mind judicial oligarchy now, since it has just produced a policy victory for them. Others might be similarly pleased if the Supreme Court invented a liberty that no individual be required to pay more than 15 percent of his income in taxes, even if the public did not support the creation of such a right.
But that is not a constitutional system of self-government. A bad political system is not made significantly better by the fact that it sometimes produces a result you like.
Rather, the American Constitution preserves freedom by dividing power between three branches of government, ensuring that no one branch has the ability to seize absolute authority. A judiciary powerful enough to provide every right you desire also has the power to take your rights away.
Our Founders understood that such authority must never be given to one of the branches alone. That is why they never gave the Supreme Court a general and explicit power of judicial review. James Madison wrote in Federalist Paper 49 that no branch of government could “pretend to [have] an exclusive or superior right of settling the boundaries between their respective powers.” Madison understood what many fail to grasp today: that granting a branch of government the ability to decide the scope of its own power is essentially the same as providing limitless power. When functioning properly, the Court exercises the authority to find laws unconstitutional only when absolutely necessary to resolve a legal dispute before it. The Founders would not be able to recognize the Court as it behaves today.
The Supreme Court is willfully neglecting its true function: to interpret the law rather than make it. It abuses its power whenever it imposes its policy preferences on the country while pretending to use the law as the basis of its decisions. As these abuses continue, it will become more obvious to the citizenry that the Court is making the law up as it goes along. This realization will sharply dampen the public’s respect for the Justices, making citizens skeptical that the Court deserves the power to rewrite our Constitution whenever it pleases.
Justice Scalia’s dissent contains an ominous warning about what will happen if the pattern of decisions “unabashedly based not on law” continues. At the most basic level, the Court’s decrees are just words on paper. They require assistance from the other two branches and the states to implement. It is the people’s trust in the Court as the impartial guardian of the rule of law that makes them so willing to abide by decisions they may sometimes disagree with.
If that trust further erodes, Justice Scalia writes that the Court “might soon learn of its impotence,” which could come in the form of defiance of the Court’s rulings. While I do not think we have reached the point where such disobedience will be or should be utilized, the Justices themselves have put us on a path that may lead to precisely that.
The Court would be well-advised to change course, not just for the country’s sake, but for its own.
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Julius Kairey is a 2015 graduate of Cornell University School of Arts & Sciences, majoring in Government, and will be attending law school in the fall.
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Comments
It’s not giving that power to one branch alone. The executive branch pushed hard for this result and obtained what it sought. Two branches are tag-teaming to render Congress irrelevant and impotent.
They ignored the law as it was written to get the outcome they desired.
“As long as it can get away with overturning democratically-adopted laws by inventing new “liberties” out of thin air, it will do so.”
The court’s decision in Obergefell wasn’t pulled out of thin air.
The precedent that marriage is a fundamental right protected by the Constitution and therefore any restrictions on the right to marry are subject to strict scrutiny was established nearly 50 years ago in Loving v Virginia:
“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.” ~ Loving v Virginia, 388 U.S. 1, 87 S. Ct. 1817,18 L. Ed. 2d 1010, 1967 U.S.
On the surface, the Loving v Virginia case would seem to apply directly to the same-sex marriage ruling. However, the “very existence and survival” of mankind does not depend on gay marriage. Further, homosexuality cannot reproduce itself in order to survive. While it is true that science can give lesbian couples the ability to reproduce, there is no guarantee that the offspring will be homosexual. To bend a ruling intended to grant the right to interracial marriage into gay marriage is the court wishing to produce an outcome in society. This issue will no more be settled than the issue of abortion. Courts have their opinions; citizens have their own as well.
For two decades I’ve thought the judiciary was the most corrupt branch of government. That this was not widely known was only because most people are fortunate enough to not find themselves in the hands of the system. I think this week’s SCOTUS decisions make it clear to many that the courts, politicized at all levels, no longer deserve our respect — at least not mine.
Over the past six years the illegal and immoral antics of the executive branch, the flagrant corruption of the Democrat Congress and the the subsequent incompetence (collaborative corruption?) of the subsequent Republican Congress had me questioning whether my two-decade-long opinion of the judiciary was valid, but SCOTUS’s actions this week have reassured me. Not that I see the potential for salvation from the other two branches.
As far as I’m concerned it’s far past time to rebel. I have no doubt the Founders and Framers would have begun shooting long ago. I’m too long in the tooth to go that route, or at least to consider leading the charge. But, I believe it’s time to brainstorm ways of meaningful rebellion that don’t surpass the threshold of misdemeanor behavior.
And even as you point out why this is bad, a blinkered fool spouts why this decision is just great and hunky dory because Loving v Virgina. They’re whistling and watching the glittery butterflies five guys in funny robes march them off a cliff.
Wasn’t that three women and two men?
@Julius Kairey ~ Well said. I never thought of the decisions that way. We have lost so many valuable freedoms the past 10 years or more, I’ve lost count. Really it all started in 1913 with the creation of the Federal Reserve. It was just a matter of time before it was the end of our western European culture.
The LIV citizens cheering this on are just THRILLED to be on “the winning team” (ie, allied with the Progressives in their long, successful march to destroy the “thou-shalt-not”s of Western Civilization).
The Progs appeal to human frailties in order to gain votes-and-power. Their position is that there should be ONLY “rights” (ignore responsibilities); there should be only “benefits” (forget about costs). They demand the “freedom” to do whatever feels good, without ever recognizing a need for self-control. They want the Id and Ego to run free in the sunshine, and the Super-Ego should be shut up in a closet somewhere. They proclaim endless fulfillment (without any obligation ever being incurred).
What they offer is — Eternal Childhood. And WAAAY too many voters think this is possible. They’ve been conditioned to see our laws and social norms as RULES *FORBIDDING* THINGS THEY WANT.
Those voters will not understand — will REFUSE to understand — that Rule of Law PROTECTS them, until the physical truth of that Niemoller poem comes marching up to their front door: “First they came for the Socialists, but I didn’t care … “
Great summary, Julius, when so much can be said about the Usurpers of Democracy.
“While I do not think we have reached the point where such disobedience will be or should be utilized, the Justices themselves have put us on a path that may lead to precisely that.”
Oh, I think we are there right now. And there are others who think the same.
In a New criterion article by Charles Murray titled “Curing America” Murray opens his remarks at an award ceremony with, “I am a little wary about receiving an award named for Edmund Burke two weeks before the publication of a book in which I advocate massive, systematic civil disobedience.”
Briefly, Murray goes on to propose a Madison Fund which would be a fund to defend people against government overreach by litigating, drawing out litigation over a long period and creating huge publicity about the matter. He said many such funds should be created in different sectors of society that each deal with government.
The only problem I see is that any litigation is before a judge and then latter before other judges who may already be tainted by liberalism’s moral relativism conveyed as ad hoc law.
Murray speaks of Mancur Olson and Olson’s description of “institutional sclerosis”. We have it bad in America.
Murray: “This brings me to the ambitious proposition I want to defend tonight: we cannot use the normal political process (I believe he means democratic elections) to roll back the reach of government…we cannot meaningfully reduce the scope of government through political process.” Murray goes onto explain why.
Murray’s speech is in The New Criterion June 2015 issue.
It is time for civil disobedience and we must discuss how to do this.
I am also reading John Dunn’s “Breaking Democracy’s Spell” about the inherent weaknesses of democracies, many of which we have become Supremely aware of the last seven years.
Read “later” not “latter”. My word processor also has “sclerosis”.
“While I do not think we have reached the point where such disobedience will be or should be utilized, the Justices themselves have put us on a path that may lead to precisely that.”
I do. When we are at the point that we are getting strictly political decrees from what should be a court of law, we have to say “STOP”. When the dissents are much more persuasive than the majority, they we have to say “STOP”.
The only way to say stop to these 5 Justices is to either ignore their ruling or to attack them.
Rick: I agree. Every day that we do not fight back is going to simply make winning the battle that much harder. We cannot wait until we are ‘forced’ – that is just an excuse for inaction. By then it will be too late.
I’ve been plugging my church group’s website at http://www.unshackledaction.com/ but what I really am doing is begging for people to offer suggestions for actions – actions that individuals can take. I hope that group actions will follow soon, but when? If you have ideas, be the first to comment on our ‘discussion’ page for same sex marriage or just go to our ‘contact us’ page to send an email.
There were always more than three branches checking each other. The root branch is Dominion. That is G-d’s dominion over Creation, and G-d’s grant of dominion over the Earth to Man. The growing stalk is “We the People”, acting under Natural Law, that is the Laws of the Creator and Nature’s God. Some of these are availed, so it may seem to many, into man’s base of knowledge by logic and rationality, but the event at Mount Sinai some years ago, and the event ending at Mount Ararat some years prior to that, give a strong suggestion that man’s logic and rationality alone are not enough to establish what is good law, that laws need a foundation in Revelation. Edward Coke, a good man at Law, called such things “Lex Eterna”, but gave a proper regard to Moses, the redactor of the Sinai even, calling him “the First Writer of Law in the World”.
“WE THE PEOPLE” starts the grand charter of the United States of America, but before that charter and not negated in any way by it, the birthing certificate of our Nation, upon our birth from mother England refers to Dominion, Lex Eterna, at least three ways. No law in our nation is worthy that does not abide the Dominion, or that is in rebellion to it. That is also clear from that birthing document, our Declaration of Independence, and is the fundamental assertion we make in parting from English Law, for England’s Law and it’s King had reached a stage of intolerable rebellion against the root and stalk of true law. The Declaration gives a list of particulars, some of those particulars clearly have been reached by our own National Government, and thus that government is now in a state of intolerable rebellion to Dominion and has by that reached illegitimacy.
There are more than three branches. The Charter, our CONSTITUTION, recognizes the States as Sovereign, and does so both directly and indirectly The States are another grand branch — it is to the states that all regular issues of law were to be left. Such as Contract, Citizenship, Felony, Misdemeanor, Marriage, Property and Inheritance.
And left as well to WE THE PEOPLE. In juries, in grand juries, in all forms of men assembled, in our churches, and meeting places. In our elections of representatives, in the hierarchies of representative assemblies. We the People are the air, the soil, the growth edges and sprouts of the society and it’s governments and courts.
The National Government has voided it’s legitimacy. It holds any still by dint of habit, structure, power. But not from lawfulness.
It is now against all the rest of legitimate law and good parts of society, a threat of the wild.
The four dissents were saved by only one of them, and that save is weak. Only one referred to G-d’s laws has being that law which is most fundamental, but that reference in Judge Thomas’ dissent was indirect. Even a State which allows “homosexual” marriage is outlaw for that, as was our National government outlaw at Dred Scott for ruling that fellow humans happening to be the descendants of black Africans were not due any process under law.
We are so far away from good law, much less G-d’s law. Yet both are needed and due us under our charters. The charter of Common Law as inherited from England in the period after the upheavals and resolution there, then as that was developed in the colonies as the theories of charters in colony and municipality, even that developed in New Amsterdam as foundation for the urbane law of New York City today. Yet these law in our National Congress such as Obamacare, the Tarp bailouts, all the omnibus legislations and budgets — all fail a standard of being understandable and knowable to good citizens. That must a failure of law as hard a failure as annoying overstep of authority. Inscrutable law, length and obscurity of terms, or even overwhelming variance in object all poison law. Such is is outlaw on its face to good men. If not understandable to mature adult citizens it is no law.
1) The American Social Contract was bound inextricably to the rule of law. The rule of law was explicitly destroyed by the Supreme Court with the vocal approval of the Democrats and the silent approval of the DIABLO Republicans. Keep in mind that before this ruling Obama and the Democrats openly claimed that the president has the power to rule by decree outside the law and the Constitution. And the Republicans have ratified it by their votes and by appropriating funds for rule by decree.
2) In the absence of a Social Contract, we are returned to the State of Nature as outlined by Thomas Hobbes in his book Leviathan. There is no legitimate governance and it is a “warre of every man against every man”.
3) No obedience is owed to any entity that acts as a State without the consent of the governed, beyond what can be compelled by force. And there are no moral restrictions on what can be done to resist that force.
Congress outsourced much of its constitutional authority with the creation of the bureaucratic welfare state. It now writes monstrous 2500 page laws that nobody can read or understand and which require hundreds of executive branch lawyers and staff to implement. So the legislative branch as intentionally transferred much of its constitutional authority to the executive branch, weakening itself and strengthening the executive branch in the process. This has been going on over several decades. But there is seemingly neither an end to it nor a way to stop it.
So as the executive branch gets stronger and stronger at the legislature’s expense, than means we need an equally strong judicial branch to act as a strong check on executive branch over-reach. Instead, what we got with the SCOTUScare ruling was the judicial branch not acting as a check, but bending over backwards to find a way to ensure that what the executive branch did could be rationalized away. So we have an impotent Congress, an excessively strong president, and a judicial branch that seems to be in cahoots with the executive branch to degrade individual liberty.
In other words, none of the branches are working as they were intended. The legislative branch is too weak, the executive branch way too strong, and the judicial branch isn’t providing the check needed on executive branch over-reach.
That’s why I said before that in some ways we now have our own version of Julius Caesar and the only way to check his power is with a Brutus because neither the legislative nor judicial branches seem willing or able to check his power. Ironically, Benjamin Franklin insisted we have an impeachment process precisely because that without one assassination would be the only way to remove what he called an “obnoxious” Magistrate.
http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1163&context=facpub
But impeachment doesn’t work, because Democrats don’t care about Constitutional checks on power. In fact, when Obama openly declared at the State of the Union address a couple of years ago that he intended to bypass Congress to impose his agenda, elected Democrats gave him a standing ovation as they cheered loudly and applauded his stated intention to usurp their power. Virtually nobody in the press cared either. He could get away with murder and Democrats would not vote to impeach him. And in fact he has gotten away with murder. He has ordered the execution of American citizens without due process because someone told him they are terrorists. And not only those citizens were executed, but so were bystanders. Collateral damage. And almost nobody cares.
The founding fathers of this country feared the rule of the mob as much as the rule of kings. We have a republic rather than a democracy as a result of their intellect. It seems many of you prefer the rule of the mob.
I’m not a really smart person like most of you. But even I can see the seeds of destruction that were just sown by the Supreme Court rulings of the past week that will take down this great country. Why anyone would want to destroy this country is beyond me but they’re doing it. I see friends on Facebook lauding the gay marriage ruling with no understanding of the danger it holds for them personally should they ever get on the wrong side of leftist opinion on anything now. There is no appreciation of the Constitution or of the Founding Fathers’s understanding of human nature and their way of combatting that nature of some who would want to rule all others. Even the people who are opposed to the ruling in the gay marriage case are opposed for the wrong reason. I am more disheartened now than I have ever been. I don’t know what to do. It seems so hopeless.
You’re born this way. Sexual choices resides on our mitochondria, which is inherited matriarchally. (The males mitochondria is the whipping tail on the nucleus sperm. And, it falls off as soon as one nucleus enters an egg.)
This inheritance dates back thousands of years! And, yes, for thousands of years people kept sexual information relegated to the closet.
Is marriage what gays wanted? Yes, lesbians tend to be monogamous. But as a general rule male behaviors have been rather promiscuous. Until you reach the 1980’s, and the AIDS epidemic, the “closet door” became unhinged.
I cannot imagine the Supreme Court has added anything positive here, except for one thing. Perverted police tactics needed to be brought to a stop. Given that you’re born the way you are. And, 10% of every population, is diversified along the spectrum to be homosexual. Won’t it be nice to not treat people like freaks?
Many of those with interests in various forms (and there is great variety) of alternate sexual interests, attractions and revulsions, experienced trauma as a child, usually some kind of sexual abuse. I mention “revulsion” because many times they want to re-enact something they hated, over and over and over again.
Anyway, they weren’t all born that way, that is for sure. Camille Paglia has commented on this, too. In any event, I feel very badly for them, but that doesn’t mean I want to re-order society, particularly the raising of children, to humor them. Provide patience, compassion, tolerance, absolutely, but reorder what we need to function and pass our culture on? Absolutely NOT.
By the way, if someone denies they were abused or neglected, bear in mind, depending on how bad it was, and how old they were at the time, they may not even know. See “Fractured Mind,” by Robert Oxnam. For those that need resources for help, go to http://www.MaleSurvivor.Org.
I’ve read about twin studies pointing to a roughly 50% genetic component: If you’re gay, your separated-at-birth identical twin has about a 50% chance of being gay. The non-genetic factors may have entered the picture very early in life, and we may have little idea what they could be, but they seem to be significant statistically.
I’ve also seen some indications of the power of sexual imprinting: the circumstances and nature of the earliest sexual experience may have a long-lasting or permanent effect on what a person seeks in further such experiences. There are surely some adults who understand this and aim to use it to their benefit.
Wouldn’t it be nice if we stopped pretending that saying “a man-man relationship is not marriage” is equivalent to telling people they are “freaks” or treating them “hatefully” if they’re inclined to that kind of relationship? Or that it’s equivalent to preventing people from “loving” whomsoever they choose?
Please cite peer-reviewed research: “Sexual choices resides on…” and also document your 10% homosexual claim.
And on a related topic: banning therapy for those that want to rid themselves of same-sex attraction is the most over-simplified approach to this I’ve ever heard. The only people that would suggest such a thing are those without a clue, and those with a different agenda, e.g., they don’t want to be nagged about trying it. I don’t blame them for that, but they should shut up and let people get what they need for themselves.
It should be obvious now that our country has been taken over by elements of the left.
The President disregards the Constitution and make rules violating it.
The DOJ ignores prosecuting the New Black Panthers and involved itself in distributing guns to criminals in Mexico.
The Supreme Court now rewrites laws they don’t like.I’ll bet they can defines “is” for Bill Clinton.