A Despotic Branch

One of the most important outcomes of the November 2010 elections was one that was virtually ignored by the media. In Iowa, all three state Supreme Court justices facing a retention vote were defeated and removed from the bench, the first time that ANY judge in Iowa have been removed since the retention vote was implemented in 1962. And what animus compelled the voters of Iowa to make such a drastic and historic change? Last year the state Supreme Court ruled unanimously, in Varnum v. Brien, to overturn as unconstitutional the vote of the citizens of Iowa making the legal definition of marriage as being between one man and one woman.

And what was the justification for overthrowing the will of the people? On page 15 of the unanimous decision, the court explains that “Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.”

Not yet broadly accepted? At one time unimagined? In essence, the court is blatantly admitting their belief in a “living” Constitution, one where “rights” can be created out of thin air by the will of the judicial oligarchy and imposed upon the lesser, unwashed masses who are simply too ignorant to grasp the brilliance of the judges. Such hubris is stunning, yet it is all too common today. Yet due to a media that is often hostile to the Constitution (TEA Party members have been described repeatedly by the media as “extremists” and “fringe elements” for their demands that politicians adhere to the text and intent of the Constitution”), very few people realize just how abusive the judiciary has become.

This damage to our freedoms and to the balance of government is compounded by the fact that most abusive rulings stand unchallenged. Last year, the Supreme Court heard arguments on less than 100 cases, and the docket totals have been steadily dropping for several years. For any case not chosen for review by the Supreme Court, the ruling of the appellate court stands. Of the thirteen U.S. Circuit Courts of Appeal, the 9th Circuit (CA and western/Pacific states) alone accounts for more than 1/3 of all cases overturned by the Supreme Court.

Often the rulings of these courts are in obvious conflict with both the Constitution and the will of the people as expressed through their elected representatives. The examples are myriad. Among them is the ruling in Kelo v. New London, the 2005 U.S. Supreme Court decision in which a 5-4 majority ruled that the Fifth Amendment’s “Public Use” clause regarding eminent domain could be expanded to mean “public purpose”, which allowed government to take property from one private party and give it to another private party if it would increase tax revenue; also included is Roe v. Wade (1973 Supreme Court ruling which discovered the previously unknown “right” to kill unborn children in the name of “privacy”).

Examples of appellate abuse includes cases from the 9th Circuit Court of Appeals includes Newdow v. U.S. Congress (2002, the 9th Circuit ruled the inclusion of the words “under God” in the Pledge of Allegiance constituted a violation of the First Amendment’s Establishment Clause) and Fields v. Palmdale School District (2005, the 9th ruled the right of parents to raise their children according to their own beliefs “does not extend beyond the threshold of the school door,” and that a public school has the right to teach students with “whatever information it wishes to provide, sexual or otherwise.”). The Fields v. Palmdale ruling was especially bitter to parents, who brought the case to trial after school officials dismissed their outrage and concern over a 79-point questionnaire issued by the school system to 7-10 year olds questioning them in explicit detail about their thoughts on various issues of sexuality and even suicide.

To advance the notion that the Founding Fathers had condoned and affirmed such tyranny by the judiciary as they formed the Constitution is ludicrous on its face. They would be shocked and horrified to see the America today in which their beloved Constitution had been interpreted so broadly as to render it meaningless; to see an interpretation of the Commerce Clause so expansive that it encompasses anything the federal government decides it wants to regulate (including a farmer growing wheat for personal use; Wickard v. Filburn, 1942); to see the First Amendment construed to protect pornography and stripping while circumscribing political speech and the public expressions of religion; to see how far the 9th and 10th Amendments have been weakened by complicity between the federal government and the judiciary as it further usurps the state powers granted under the Constitution.

Thomas Jefferson, in a letter dated September 11, 1804 to Abigail Adams, wrote “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 well understood that the Founders had intended the judiciary to be the weakest of all the branches, being largely unelected and unaccountable to the people upon whom the burden of their rulings would fall. He also understood that it would be a grave mistake to inoculate the judiciary from oversight and criticism by conveying upon them a reverence which was beyond what was due. Judges are no more or less susceptible from political pressures and corrupting influences than any other men. In fact, it is just the opposite. The fact that they are largely free from the tempering influence instilled by the prospect of facing the people to answer for their decisions makes them more likely to render judgments based on personal philosophies and preferences rather than the clear wording and intent of the law as passed by the elected branches.

The great British writer C.S. Lewis once noted that “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.

All too often the judiciary imposes upon the people its own philosophies, which it deems superior to the mundane musings of the unenlightened. The damage because of it has been incalculable. Just as Jefferson did with the Judiciary Acts of 1801 & 1802 (in removing the “midnight judges” which Adams had attempted to pack the courts with just before leaving office), the removal of these Iowa Supreme Court justices for thwarting the will of the people of that state was a much needed remedy for an arrogant expropriation of powers rightfully belonging to the elected branches. Further such efforts would provide a much needed firewall to the encroachment of the judicial oligarchy.


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