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September 30, 2020

Court as Supreme Is Antithetical to Founders’ Vision

The judiciary was never supposed to be the most powerful federal branch.

The death of leftist icon Justice Ruth Bader Ginsburg, mere weeks before a presidential election, and President Donald Trump’s nomination of judge Amy Coney Barrett to replace her have thrown gasoline onto an already volatile election cycle.

While conservatives rightly cheer the nomination of former Antonin Scalia clerk and originalist Amy Coney Barrett, it has sent the progressive Democrat Left into literal screaming paroxysms of rage and despair and even prompted calls for a violent revolution.

Those reactions alone should tell us the judiciary today is far from what it was envisioned to be by our Founding Fathers.

In the Constitutional Convention, our Founders established the framework of the judicial branch under Article III, declaring, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Judiciary Act of 1789 originally set the number of justices at six, a number that varied between five and 10 justices before settling at nine in 1869.

The Founders saw the judiciary as the weakest of the three branches, called upon to settle legal disputes, but without power to exert its will as could the elected branches.

In 1788, writing in Federalist No. 78, Alexander Hamilton described the judiciary as the “least dangerous” branch, arguing that the executive “holds the sword” and the legislative “commands the purse,” but the judiciary “has no influence over either the sword or the purse, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment.”

That notion was upended with the Supreme Court’s ruling in Marbury v. Madison, which established the doctrine of “judicial review,” asserting the Supreme Court has the final say in all matters subject to its jurisdiction, granting itself power to strike down laws made by Congress.

That ruling would, over time, make the Supreme Court the most powerful body in the land. The rulings of five black-robed oligarchs became capable of overturning the will of more than 300 million Americans, as exerted through their elected representatives, with precious little recourse.

Thomas Jefferson, among the greatest political luminaries in human history, warned of this encroachment by the judges, whom he referred to as “the subtle corps of sappers and miners” working to “undermine the foundations” of the constitutional republic.

In an 1804 letter to Abigail Adams (wife of John Adams), Jefferson declared “The Constitution … meant that its coordinate branches should be checks on each other. 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 branch.”

Jefferson was prophetic, and we now have a Supreme Court that has, through its usurpation of power, only increased the rancor and division in society by unilaterally declaring an end to issues of social import, stripping the power to make those decisions from the people — from whom the legitimacy of government flows.

In so doing, the Supreme Court declared that not engaging in commerce is a form of commerce, opening nearly every aspect of a citizen’s life to governmental regulation. Likewise, the Court, after nearly 200 years, suddenly excavated a “right” to kill preborn children that had previously escaped the Founders and subsequent congresses. And most recently, the Court declared an end to the special legal status afforded man/woman marriage in the creation of families, discarding thousands of years of human history, and asserting the structural foundation of every civilization since the beginning of mankind was driven not by the collective wisdom of human experience (never mind God’s design) but by “animus” toward homosexuals.

In every major issue where the Supreme Court has overridden the will of the people by judicial diktat, the issue has become more contentious over time.

This is why leftists are apoplectic at the prospect of President Trump successfully appointing an originalist like Barrett to the nation’s highest court. For decades, the progressive Left has used the judiciary to accomplish policy goals that it could not convince its fellow citizens to ratify at the ballot box.

With the confirmation of Barrett, the Court will enjoy a 6-3 conservative majority that can survive the increasingly common defection of Chief Justice Roberts. He has, allegedly to protect the Court from accusations of acting politically, himself acted nakedly politically during the Obama and Trump tenures.

No longer will the “living Constitution” philosophers on the Supreme Court have a majority to rule based on what they think the Constitution should say, rather than what it actually says. No longer will the Court’s liberals be able to use the bench as “a tool of ‘progress’ to bypass the inconvenient barrier of legislative process.”

Now, the Court’s leftist justices will have to find validation for their opinions in the written text of the Constitution.

Ironically, this may end up reducing the importance of the Supreme Court and returning a modicum of civility to society and the legislative process. Unable to use the courts as a bludgeon, partisans will have to once again learn the art of persuasion to convince their neighbors of the goodness and rightness of their political and policy positions.

Maybe then we can take a step closer to the vision of the Founders.

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