OriginalismThe growing problem with our judiciary system

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them…The judiciary…has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.”

-Alexander Hamilton, FEDERALIST 78.

Alexander Hamilton’s vision for the proper role of the judiciary in America’s constitutional government is nearly unrecognizable today. While Hamilton said that “it proves incontestably that the judiciary is beyond comparison the weakest of the three departments of government,” any modern observer would find it difficult to contest that the judiciary, at all levels, is beyond all doubt the strongest of the three departments of government. In recent years, judges in Massachusetts read the constitutional right to homosexual marriage into the Massachusetts Constitution. A Constitution, written by John Adams, that states “with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity” for “devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish… the Constitution of the Commonwealth of Massachusetts.” Meanwhile, in states such as Kansas and Arkansas, judges have taken over the power of the purse ordering their state legislatures to raise taxes to provide more funds for education. While many judicial decisions may be good public policy, they are unquestionably an unconstitutional usurpation of legislative power, a maneuver that threatens to shatter the balance of power and the basis of our republican government - “by the People, for the People, and of the People.”

This trend is a radical departure from the traditional role of the courts. The recent drive by judges to work for justice has forced them to abandon the law and the Constitution. As Lino Graglia, a professor of law at the University of Texas, has said, “the thing to know to fully understand the contemporary constitutional law is that, almost without exception, the effects of rulings of unconstitutionality over the past four decades has been to enact the policy preferences of the cultural elite on the far left of the American political spectrum.” They must be stopped.

Chief Justice Oliver Wendell Holmes once said that he was “always suspicious of an advocate who comes before the Supreme Court saying this is a court of justice; it is a court of law.” In an instructive moment, one day, after having lunch with fellow Justice Learned Hand, Holmes was extolled to “Do justice, sir, do justice” by Hand. Holmes stopped the carriage immediately and rebuked Hand, saying: “That is not my job. It is my job to apply the law.”

Today the law seems to be the last thing on judges’ minds; that is, unless they are undermining it or flatly rejecting it. One of the most dangerous trends in this direction has been the willingness of some judges to substitute the laws of other nations for American law. Perhaps the most instructive example of this is the 2003 case, Lawrence v. Texas, that ruled unconstitutional laws that made sodomy illegal, abandoning the precedent from Bowers v. Hardwick (1986), which ruled that a Georgia law barring sodomy was indeed constitutional. Explaining her decision in the Lawrence case in a speech at the Southern Center for International Studies in Atlanta in October 2003, Justice Sandra Day O’Connor said that concern “for the views of foreign and international courts,” persuaded the court to rule that “consensual homosexual activity in one’s own home is constitutionally protected.” In coming to this decision, O’Connor stated flatly that “the Supreme Court relied in part on a series of decisions from the European Court on Human Rights” and that she suspected “that with time, we will rely increasingly on international and foreign law in resolving what now appears to be domestic issues.” Apparently, according to Justice O’Connor, not even laws reflecting public morality are domestic issues, and the American voting public and their elected representatives must rely on the whims of European courts.

Justice O’Connor is not alone. In fact, an alarming number of judges and deans of law schools are beginning to vocalize that courts should no longer be bound by the Constitution and American laws. For example, at a speech at the American Society of International Law in April 2003, in Washington, D.C., Justice Breyer said that the court now finds “an increasing number of issues, including constitutional issues, where the decisions of foreign courts help by offering points in comparison.” Later in the speech, Justice Breyer said that he loved “the American Bar Association with their 600,000 members and 800,000 committees because it is in those committee meetings, through discussion and debate, law is created. The same, I should add, is true today of much international and trans-national law.” In case Justice Breyer forgot, the Constitution explicitly states, “All legislative powers herein granted shall be vested in a Congress of the United States” (Article I, Section 1). Not the Supreme Court. Not the American Bar Association. Not foreign courts. The Congress makes the laws, and it is high time that the courts, and especially the Supreme Court, be reminded of that fact.

Alexander Hamilton clearly did not see this judicial usurpation of power coming when he said, “There never can be danger that the judges, by a series of deliberate usurptions on the authority of the legislature” attempt to assume the powers of superlegislatures. In reality, demonstrated by their words and actions, many judges see their role as what Robert Bork has described as “not only the supreme legislature of the land but a legislature beyond the reach of the ballot box.” That is a position that many judges enjoy possessing. For example, Justice O’Connor has praised the constitution of Bahrain for its commitment to judicial authority by providing that “no authority shall prevail over the judgement of a judge, and under no circumstance may the court of justice be interfered with.” While Bork has despondently said that the Founders “provided no safeguards against” the judiciaries “assumption of powers not legitimately its own” there remains one possible remedy for this situation. As Hamilton retains the ability to punish the judiciaries’ “presumption by degrading them of their stations” through impeachment. (Hamilton, FEDERALIST 81)

While it is obvious to any serious student of constitutional law that many Supreme Court decisions lack any serious constitutional grounding, many nonetheless accept and even praise the decisions because they achieve desireable policy result. For example, I believe that women ought to have the right to make choices about their own bodies and that homosexuals ought to have the right to privacy in their own homes, but I am obliged to recognize that these decisions properly belong to the country’s many legislatures and the people, not judges. That is the essence of the belief in originalism.

The principle of originalism has perhaps never been explained better than in Justice Scalia’s dissent to the Supreme Court’s decision (United States v. Virginia Military Institute (1996)) that forced the Virginia Military Institute to accept women. Scalia wrote: “The value of the democratic system with a First Amendment is that it readily enables people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked upon a course of inscribing one after another of the current preferences of the society (and in some cases on the counter-majoritarian preferences of the society’s law-trained elite) into our basic law.”

Justice Scalia explains what most liberals cannot understand: the Constitution grants the power to change laws, and even amend the Constitution, to Congress and the people, and not to judges. The criticism directed at those who disagree with the activist role of the Supreme Court is troubling, especially given the Court’s past history of judicial usurpation of power to limit freedoms. (See Dred Scott v. Sandford (1857) and Plessy v. Ferguson (1896).) As Robert Bork has written: “It is fascinating that when one calls for greater democratic control and less governance by a judicial oligarchy, one is immediately called a fascist.”

Given the chance that as many as two seats on the Supreme Court may become available during the next President’s term, the importance that a potential Executive puts on nominating judges who believe in democracy and the people’s right to be sovereign over their own laws should be at the front of all voters’ minds.