By Seth Richardson
Federalist No. 78 discusses the judiciary and the Supreme Court. One of the grave problems we face is “judicial activism” and a shift away from the original intent of the Framers. When the Supreme Court presumes to dictate social policy, whether it be approving unconstitutional acts of Congress or creating “new rights” like the right to abortion out of whole cloth, tragedy and tyranny follow.
But at the same time it is the duty of the Supreme Court and all inferior courts to preserve, protect and defend the integrity of the Constitution and the principles upon which it is founded against intrusions into personal liberty by Congress or others not authorized by the People.
In Marbury v. Madison, Justice Marshall says, “Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions.”
The error of the case is the establishment of the idea in our legal system that judges are to say “what the law is.”
What Marshall should have said is that the Court has a natural duty to say what the law IS NOT.
What I mean by this is that the proper tension between the power of Congress to make law and the power of the Court to nullify that law requires that the Court test any contested law against the Constitution, AND ONLY THE CONSTITUTION, and determine if the law comports with the plain language of the Constitution and the ideals of limited government it expounds.
The Constitution is a document of negative liberties and constraints upon GOVERNMENT, not an explication of a list of rights and liberties that the PEOPLE enjoy. This is a very, very important concept that the Court has forgotten and replaced with the notion that it is the duty of judges at all levels to say what the law (which is to say what the rights of the citizens) is, rather than saying what the law FORBIDS TO THE GOVERNMENT.
In short, all power, rights and liberties are possessed by and retained by the People except those rights and liberties that are constrained by settling upon the government power to regulate them by the People with their consent. Thus, a court should never ask “do the People have a right to do X or Y” because this reverses the presumption of our entire system of government. The answer is always “Yes, the People have the right to do X and Y, and anything else that they wish to do, absent an express grant to Congress of the authority for Congress to regulate that particular liberty.”
Thus, the only proper question for the Court to ask is whether the People have granted to Congress the power to regulate that thing. If the answer is no, then the law must be overturned as being unconstitutional because there is no grant of power for government to exercise control over the liberty in question, REGARDLESS OF THE CONSEQUENCES of doing so.
The courts have all abandoned “originalism” in favor of precedent and Stare Decisis. Worse, the SCOTUS has resorted to judicial activism since about 1900 in order to uphold Progressive social engineering goals it deems worthy. For example, most legal scholars acknowledge that the power to create the Social Security system has no foundation whatever in the Constitution, and that the Court’s upholding of it is plain error, but the Court sees it as a “good thing” and has subverted the Constitution by abandoning it’s duty to do what constrains government the most, in conformance with our Republican principles. (continued)
On the other hand, if the Court finds that the People have authorized the Congress to legislate in a particular area, its duty goes no further than again testing the law against the provisions of the Constitution and the Bill of Rights for compliance, and if the law does not contravene the letter of the law in either case, it is NOT within the authority of the Court to determine that it does not like a particular law and for that reason substitute its own judgment for that of the duly elected legislature.
If we look at the case in California over Prop 8 in this light, we see that the judge came to the wrong decision by deciding that the State of California has “no rational basis” for discriminating between heterosexual and homosexual couples in it’s laws regarding marriage. But that’s not the proper question. The question before the judge was whether the People of California, through a democratic majority vote, have a right to determine for themselves what powers they will confer upon government to regulate marriage. Clearly the People have this power, and it is plenary power.
That is what the California Supreme Court held in its rulings upholding Prop 8. The CASC explicitly said that all power derives from the People, and that it is absolutely within the purview of the People of the state to determine what authority its government may wield regarding the institution of marriage, and that therefore Prop 8 was a lawful act under California’s Constitution. The CASC went on to say that the issue before it had NOTHING TO DO with the civil rights of gays regarding their intimate personal relationships BECAUSE California had ALREADY enacted state laws providing for registering “domestic partnerships” that provided essentially identical legal rights and protections to gay couples as those extended to married heterosexual couples insofar as state law was concerned.
Thus, the actual legal and practical effect of Prop 8 was the reservation of the word “marriage,” and ONLY that, for the exclusive use of heterosexual couples in California law. Gays have precisely the same legal rights (with five minor differences that were evidently inadvertently overlooked in the law) as married heterosexuals in California, it’s just that the People of California ordered their government to use one word when referring to heterosexual unions acknowledged by state law, and another phrase to describe homosexual unions. That’s it.
But what we saw in the federal trial was the essence of judicial activism where a federal judge ignored reams of law and case law that empowers governments everywhere to “discriminate” or rather distinguish between groups of people for ministerial reasons that still provides substantive and procedural due process of law to both distinct groups. Nowhere in the law is it stated that all persons must be treated precisely equally in all circumstances.
It is commonplace for government to “discriminate” or draw distinctions between groups of people and individuals based on various criteria that the legislature feels are appropriate. Wealthy people are discriminated against in the provision of federal welfare benefits, for example, while poor people are advantaged by virtue of their economic condition. There are many, many other examples of such “discrimination” that is essential to the functions of government. We “discriminate” against pedophiles by forbidding them to satisfy their perverted desires, and no claim of “equal justice” or “due process” violation will change that.
In California, the People “discriminated” in how they authorized their government to label intimate domestic relationships, reserving “marriage” for one group and “domestic partnership” for another. But the substantive rights granted to each group were functionally identical, and thus there was no violation of anyone’s right to equal justice or due process.
But the federal judge did not look to the law, he looked to the social engineering aspects of the case in ruling that those who advocated Prop 8 did so with an improper intent, ie: an intent to discriminate against gays regarding marriage, without a “rational basis” for doing so.
Thing is, the People do not need a “rational basis” for amending their state Constitution, they have plenary power to do so, as the CASC stated, provided only that their act of amendment does not violate some superior civil right expounded in the federal Constitution and Bill of Rights.
And while the right to form an intimate personal relationship with another person in a manner that will be recognized by one’s State in it’s ministerial duties and acts (like pensions and suchlike) ought clearly to be respected by the state on an equal basis for all persons (including single people and non-homosexual same-sex relationships…one does not have to be homosexual in order to desire to assign government benefits to a non-family friend or companion), the right to have the government label one’s relationship a “marriage” is found nowhere in the federal Constitution or Bill of Rights, unless I’m gravely mistaken.
In sum, what we saw in this case was clearly judicial activism, with the judge deciding the case based on his preferences for social engineering goals and not upon the principles of limited government and respect for the right and will of the People to constitute their form of government in the manner which best serves to secure their liberty and happiness.
And THAT is the problem that Marshall’s language in Marbury v. Madison has lead to.
Joerg writes: “For courts to overturn very long-accepted statutes by suddenly finding new constitutional rights against the considered judgment of the American people violates popular sovereignty and the means for constitutional change placed in the Constitution itself.”
The courts have no business “finding new constitutional rights” at all, because the very foundation of our system is that we, the People, enjoy unlimited, absolute, plenary rights to life, liberty and the pursuit of happiness, among other “unenumerated” rights. As free individuals we are at absolute liberty to do anything that pleases us that does not export harm to others. This is our “natural state” of being.
Thus, ALL “rights” belong to us as a function of our inherent nature as human beings, and the ONLY CONSTRAINTS on our liberty are those which we agree to impose upon ourselves by creating a government. We grant to that government limited powers to regulate and control our exercise of ultimate liberty in the interests of civilization and to secure the fruits of liberty while suppressing the many evils that accompany absolute freedom of choice.
It is this concept of plenary rights of the People subject only to LIMITED constraint by governance according to the consent of the governed that has been lost in our current fevered battle against the cancer of Progressivism.
It can be simply stated by alluding to the maxim that in the system of civilization envisioned by our Founders, all that is not expressly forbidden is permitted, whereas in the Progressive/collectivist vision of civilization, all that is not expressly permitted is forbidden.
Our courts have lost their way into the mire of Progressive thought by assuming that the courts must “protect” the rights of people by “finding new rights” in the “penumbra” of rights that attends the Constitution. Precisely the opposite is true. The courts duty is not to “find” new rights, it’s to test a law against the very limited authority to INFRINGE UPON or REGULATE those unlimited, unenumerated rights that we, the People enjoy.
In short, unless a court can find an express grant of authority by the People to regulate some particular activity or liberty, the court MUST rule any law infringing upon that liberty to be “non-constitutional.” I use the term “non-constitutional” because this is a much better description of what the court should be seeking. “Un-constitutional” implies that the law goes “against” the Constitution, while “non-constitutional” implies that the authority to so regulate cannot be found within the four corners of the Constitution, which to me is a more accurate description of the duty of the court.
Conversely, the sovereign right of the People to submit to that regulation, using the appointed representative legislative process, is absolute and not subject to judicial review. For the courts to assume that a judge can dictate to the People what their proper role and rights are is to turn the notion of the sovereignty of the People on it’s head and forward the Progressive notion that the People are simply too stupid to know what’s best for them and therefore they must be ruled by those who are smarter and wiser. The inevitable result of this course, which we are on today with Progressive Barack Obama and his ilk in office, is tyranny and totalitarianism.
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