Stopping Judicial Activism

By Stephen McDowell and John McDowell

Abraham Lincoln once asked, “How many legs does a dog have if we call the tail a leg?” According to modern courts the answer may well be five. Following a string of Federal district courts, the Supreme Court recently ruled that a man and a man, or a woman and woman, is a family. They can call it so; however, just like declaring a dog has five legs, that declaration does not make it so.

In response to abusive actions of the British government, James Otis, a leader in America’s independence movement, wrote:

To say the Parliament is absolute and arbitrary is a contradiction. The Parliament cannot make 2 and 2, 5: Omnipotency cannot do it. The supreme power in a state … belongs alone to God. Parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of Parliament that makes it so: There must be in every instance a higher authority, viz. God. Should an Act of Parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity, and justice, and consequently void.[1]

The Supreme Court, like the British Parliament, has made numerous declarations regarding matters of life, family, liberty, and property. Many Americans seem to think the declarations of a majority of judges are the final word. However, they can declare all they want, but such a declaration does not make it true.

Two plus two is always four, regardless of man’s contrary view. A dog’s tail is never a leg. There are negative consequences to violating the immutable laws of God. In building a house or sending a man to the moon, saying 2+2=5 will result in trouble. Likewise, any act of man that is contrary to God’s natural laws will result in harm. However, if a few rulers make such declarations, who will hold them accountable? According to our founding governmental principles and the U.S. Constitution, it is “we the people.”

“We the people” is one fundamental component of American constitutionalism. Unlike most nations in history, America was not ruled by an elite few. All citizens had a voice in how they were governed. We did not live under rulers’ law, where an enlightened few made the laws and imposed them on the ignorant masses. Rather, a moral, self-governed citizenry formulated their own laws under the higher law of God and willingly chose to obey them. In America, “the people made the laws.”[2] This concept of self-government is one reason America was exceptional.[3]

This historically unique aspect of government – Christian self-government – is sadly being replaced by the age-old pagan concept of “rulers’ law.” Over the past few decades, activist judges have assumed the place of unelected law-makers. With little resistance or outcry from either the Congress or the general populace, we have embraced what is likely the most absurd idea in modern American polity, viz., that a handful of men and women sitting on the Supreme Court will decide for 320 million citizens what is lawful, right, and acceptable behavior.[4] These few have decided the value and origin of life, the meaning of private property, the role religion plays in public affairs, the place of religious convictions in business, and they just decided what constitutes a family. Most of their decisions regarding these matters have been contrary to the decrees of the Creator, Who, according to the Declaration of Independence – our founding covenant document – is the source of our life, liberty, and rights.

We are moving from a representative republic to an oligarchy, one becoming more and more oppressive, especially for those who believe in Creator-endowed rights. Most of the Founders could never envision runaway courts. Alexander Hamilton wrote, “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution… [T]he judiciary is beyond comparison the weakest of the three departments of power… [and] the general liberty of the people can never be endangered from that quarter.”[5]

If the courts ever attempted to usurp legislative or executive authority, the Founders believed the Congress would rein them in, as the United States Constitution clearly gives the legislative branch (which represents and are elected by the people) the primary power in the Federal government. Just compare the length and content of Article 1 of the Constitution, which delineates the powers of Congress, with Article 3, which presents the powers of the Supreme Court: 255 lines of copy deal with the powers of Congress, 114 with the powers of the President, and only 44 with the Courts.

James Madison declared that “the legislative authority necessarily predominates.”[6] Legitimate power is derived from the people and the people only. The Founders understood the tendency of man to abuse power, therefore they separated it among three branches of government and invested most power in the people through their elected representatives. Due to ignorance, apathy, and bad education we are gradually embracing the idea of judicial supremacy, where judges not only interpret, but also make and enforce law. This is in stark contrast to the Founders view of Constitutional supremacy.

Insightfully, Thomas Jefferson did warn of potential abuse of courts, writing:

The germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body (for impeachment is scarcely a scare-crow,) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.[7]

Jefferson did not charge all judges with “willful and ill-intentional error” when their rulings worked to consolidate all power in the federal judiciary and to undermine the rule of the people under law, but he wrote that “honest error must be arrested where its toleration leads to public ruin.” How was this to be done? One way, he wrote, was through the Constitutional provision of impeachment (though he lamented a supermajority of two-thirds was needed[8]): “Judges should be withdrawn from their benches whose erroneous biases are leading us to dissolution. It may, indeed, injure them in fame or in fortune; but it saves the Republic, which is the first and supreme law.”[9]

A more practical fix from Jefferson, and one we should institute today, was: “Let the future appointments of judges be for four or six years, and renewable by the President and Senate. This will bring their conduct, at regular periods, under revision and probation.”[10]

Given that most Americans profess democratic ideals, you would think everyone – liberals and conservatives – would agree on curbing the aristocratic concept of judicial rule. But alas, many folks, thinking their immoral values would more easily gain ascendency through aggressively positioning a few people on the courts rather than winning the battle of ideas in the general public, oppose restricting the judiciary. They posit various scenarios of checking the rule of the majority via enlightened judges, like asking, “What if the majority wants slavery? How would we stop this?” Yet, the more frightening (and likely) scenario is, “What if five judges want slavery?” It is much easier to get five men to embrace wrong ideas than 160 million. Moreover, it would require more than the consent of the majority to change the Constitution.

America is a Federal Republic, where certain God-given inalienable rights are guaranteed by our Constitution. Thus for slavery, or anything contrary to “the laws of nature and nature’s God”[11] to be established, it would require three-fourths of the states to approve such a measure. A three-fourths majority is significantly more difficult to obtain than the decision of five judges. Some say that the Supreme Court will never exhibit such drastic behavior or enact such rulings. But in fact it has. In the Dred Scott decision of 1857 the Supreme Court denied the personhood of blacks, and in Roe v Wade (1973) it denied the personhood of unborn children.

The courts have made numerous unconstitutional decisions (according to the intent of the Framers), especially in modern times, that have violated the will of the majority of citizens and more importantly the will of God. It has been primarily through the courts, with the rulings of a very small number of people, that a new definition of the family has been imposed upon the American people.

Recently, judges have ruled that business owners must provide services to customers even though such actions violate their strongly held religious beliefs. Florists, bakers, and photographers have been ordered to accommodate same-sex weddings or else face fines or worse. Many have chosen to close their businesses rather than violate the Christian convictions.

Homosexual activists and misguided liberals have claimed “victory,” but the rulings by these judges are both dangerous and unconstitutional. These citizens’ First Amendment freedoms of religion and speech were stripped away by a single judge. Giving such power to the judiciary puts all our God-given and constitutionally secured rights in jeopardy. What is next? Our right to life, or fair trial, or public protest? Will judges rule that you cannot run for office and even vote if you oppose homosexuality or same-sex marriage? For the liberal thinker, what if a judge ruled only regenerated Christian believers could run for office, own property, and vote? Why would anyone, liberals included, want to trust their inalienable rights to a few judges? The people as a whole are a much better security.

With the current system of an unaccountable activist federal judiciary, many other unjust decisions will surely take place. When such rulings occur what should we do? Abraham Lincoln criticized the Supreme Court Dred Scot decision for its denial of the laws of nature and nature’s God which assert the inalienable liberty of every individual. Lincoln believed that if that court decision was the absolute law of the land, then “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.”[12] It is the task of “we the people” to keep any such declarations from being incorporated into the law of the land. Most especially, we must keep a few judges (no matter how educated and “enlightened”) from imposing their morality upon the nation. But how?

Restricting Activist Judges

The Constitution provides numerous ways that Congress – the representative of “we the people” – can check activist judges. These include:

1. Impeachment – Judges can be impeached for high crimes and misdemeanors (Art. II. Sec. 4). In the past, judges have been removed for public drunkenness[13] and even bad rulings.[14]
2. Restrict jurisdiction – Congress can regulate much of the jurisdiction of the federal courts (Art. III, Sec. 2).
3. Reorganize the courts – Congress can establish and reorganize a system of inferior Federal Courts (Art. III, Sec. 1).
4. Cut off money – All bills raising revenue originate in the House of Representatives (Art. 1. Sec. 7, 8), hence Congress can use this power to restrict a run-away judiciary.

It would be best for competent judges[15] to be appointed by the President and confirmed by the Senate, and hence, use of the above means would not be necessary. Yet, even the best of judges need to be held accountable, and the current Constitutional provisions to do so have not worked well. We should heed the advice of Jefferson and change their terms to 4 or 6 years, with re-approval needed for continued service.

Jefferson said that “to consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy…. The Constitution has erected no such tribunal.”[16] In fact, the United States Constitution sprang from “we the people,” not from “we the elite few rulers.” It is time to return to the liberating idea of self-government. And … let’s also stop calling the tail a leg.

[1] James Otis, “The Rights of the British Colonies Asserted and Proved,” Sources of Our Liberties, Richard L. Perry, editor, New York: American Bar Foundation, 1952, pp. 264-265

[2] Historian David Gregg, quoted in Mark Beliles and Stephen McDowell, America’s Providential History, Charlottesville: Providence Foundation, 1989, p. 115.

[3] Early Americans could form good and godly laws and constrain themselves to obey them because, according to Gregg, “the churches made the people.” The churches imparted the Biblical wisdom necessary to construct good laws, as well as the Biblical character necessary to live under them.

[4] Thomas Jefferson said it this way:”That there should be public functionaries independent of the nation, whatever may be their demerit, is a solecism in a republic, of the first order of absurdity and inconsistency.” Letter to William T. Barry, July 2, 1822, The Writings of Thomas Jefferson, Albert Ellery Bergh, editor, Washington, DC: The Thomas Jefferson Memorial Association, 1903, 15:389.

[5] Alexander Hamilton, James Madison, and John Jay, The Federalist, A Commentary on the Constitution of the United States, New York: Henry Holt and Company, 1898, No. 78, pp. 518-519.

[6] Ibid., No. 51, p. 345.

[7] Thomas Jefferson, “Letter to Charles Hammond, Aug. 18, 1821,” The Writings of Thomas Jefferson, 15:331-332.[8] Jefferson said requiring two-thirds vote in the Senate to remove a judge must be changed, writing that this percentage is “a vote so impossible, where any defense is made before men of ordinary prejudices and passions, that our judges are effectually independent of the nation.” He wrote that this ought not to be and suggested that for our government to continue that judges “should be submitted to some practical and impartial control; and that this, to be impartial, must be compounded of a mixture of state and federal authorities.” (The Writings of Thomas Jefferson, 1:120)[9] Jefferson’s Autobiography (1821), in Writings, 1:120-122.[10] Letter to William T. Barry, July 2, 1822, Writings, 15:389.[11]This phrase in the Declaration of Independence had a well established meaning. The laws of nature are the general revelation of God in creation and the conscience of man, and the laws of nature’s God are the specific revelation of God in the Holy Scriptures (see Stephen McDowell, American a Christian Nation, Charlottesville: Providence Foundation, 2004, p. 7-12).[12] Beliles and McDowell, p. 261.[13] Judge Pickering of New Hampshire was impeached as a “habitual and maniac drunkard.” (See Thomas Jefferson’s Autobiography, in Writings, 1:121.)[14] See David Barton, Impeachment, Restraining an Overactive Judiciary, Aledo, TX: WallBuilders, 1996.[15] To prepare competent judges we must change the philosophy and content of what is taught in colleges and law schools.[16] Thomas Jefferson, “Letter to William Charles Jarvis, Sept. 28, 1820, The Writings of Thomas Jefferson, 15:277.[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]