Liberals rally around judicial
supremacy
Phyllis
Schlafly
A recent
small gathering of conservatives who dared to criticize judicial
supremacists has caused an outpouring of paranoia among liberals and
others who want judges to make the major social and political
decisions of our times. The ad hoc group called the Judeo-Christian
Council for Constitutional Restoration suddenly became the target of
pack journalism.
The judicial
supremacists are just plain wrong when they assert that the rule of
law requires the U.S. Supreme Court to be accepted as the final
arbiter of constitutional questions. They are actually demanding
that the rule of judges replace the rule of law.
Many people have been fed up with judges for many years and for many
different reasons, such as prayer in school, abortion and capital
punishment. What has brought the issue of judicial mischief to a
head is the realization that we are not merely dealing with
unrelated wrong decisions but with systemic ideological error, which
proclaims the rule of judges rather than the rule of law.
The new
battle cry for liberals still smarting from their losses in the last
election is their sanctimonious mantra that we must have an
"independent" judiciary. What they really mean is independent from
the U.S. Constitution so that unelected judges can thumb their noses
at our elected representatives in the other two branches of
government.
U.S. Sen.
James M. Jeffords, I-Vt., who is just as conflicted about this issue
as about which party he belongs to, wants us to respect judges just
as we "respect the referee" in competitive sports even when we think
he made the wrong call. But the fans would never tolerate a baseball
umpire changing the rules of the game by calling a batter out after
two strikes.
Likewise, we
should not tolerate judges who try to change the rules of our
written Constitution by pretending that its meaning is evolving, or
that they have discovered new privileges no one else has detected
for 200 years, or that our Constitution must be changed to conform
to modern trends in foreign law.
The
Constitution is clear that it is not judges but "this Constitution,
and the laws of the United States
which shall be made in pursuance thereof ..." which is "the supreme
law of the land; and the judges in every state shall be bound
thereby." The Constitution also specifies that every U.S.
president must take an oath to the Constitution, not to the judges'
interpretation of the Constitution.
This is the
rule of law as our law books have described it for two centuries.
When congressmen reiterate it, they are not being "revolutionary,"
as some hysterical commentators are claiming.
House
Majority Leader Tom DeLay, R-Texas, is correct in assigning some of
the blame to Congress' "constitutional cowardice" in failing to "set
the parameters" of the federal courts' jurisdiction. Article III
gives Congress the power to decide what kinds of cases the federal
courts may hear and not hear, and Congress should do its duty in
putting limits on the areas where we don't trust activist judges,
starting with the Pledge of Allegiance, the Ten Commandments, the
definition of marriage, and the Boy Scouts.
Liberals
falsely claim we need an "independent" judiciary to protect our
rights. But those rallying to defend the courts against any
criticism are stuck with the classic 1857 judicial supremacy
decision: Dred Scott v. Sanford, wherein the court mandated slavery
in the territories (and thus laid the groundwork for the Civil War).
Alexander
Hamilton in Federalist 78 made clear that the power of judicial
review does not "by any means suppose a superiority of the judicial
to the legislative power." Instead, our written Constitution is
superior to all branches of government, and the judicial branch is
merely the agent of the Constitution, not its master.
As explained
further in the famous 1803 Marbury v. Madison decision, the
Constitution is "a rule for the government of courts, as well as the
legislature," and "courts, as well as other departments, are bound
by that instrument."
Abraham
Lincoln had it exactly right in arguing for limiting the impact of
the Dred Scott decision. He said it should be binding only on the
parties to "that particular case," that it must be "overruled, and
never become a precedent for other cases."
Continuing,
Lincoln warned: "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 people will have ceased to
be their own rulers, having to that extent practically resigned
their government into the hands of that eminent tribunal."
Precisely. In
repudiating the supremacy of "that eminent tribunal," Lincoln would
have felt right at home with DeLay's remarks at the conference of
the Judeo-Christian Council for Constitutional Restoration.
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Phyllis Schlafly Bio
Phyllis Schlafly has
been a national leader of the conservative movement since
the publication of her best-selling 1964 book, A Choice
Not An Echo. She has been a leader of the pro-family
movement since 1972, when she started her national volunteer
organization now called Eagle Forum. In a ten-year battle,
Mrs. Schlafly led the pro-family movement to victory over
the principal legislative goal of the radical feminists,
called the Equal Rights Amendment. An articulate and
successful opponent of the radical feminist movement, she
appears in debate on college campuses more frequently than
any other conservative. She was named one of the 100 most
important women of the 20th century by the Ladies' Home
Journal.
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