Wednesday, April 22, 2009

Original Sin

In the beginning God created the heaven and the earth ... and God saw every thing that He had made, and behold, it was very good.

Article III of the Constitution of the United States begins:
The judicial power of the United States shall be vested in one Supreme Court...

The framers of our Constitution clearly understood "judicial power" to mean the application of duly created law to individuals without personal or political bias. There was no intent to vest legislative authority in the judiciary. The Founders took great care to assure that no branch of the Federal government could assume powers that are not specifically granted to it by the Constitution; they instituted a system of checks and balances in which the three branches effectively restrain each other from usurping powers that are denied them. Our Founding Fathers saw the Constitution they had made, and behold, it was very good.

And the Lord God commanded the man, saying, "Of every tree of the garden thou mayest freely eat. But of the tree of the knowledge of good and evil, thou shalt not eat of it. For in the day that thou eatest thereof thou shalt surely die."

The Tenth Amendment of the Constitution says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.

Having drafted one of history's clearest declarations of personal liberty, the grantors of our political heritage found themselves in a judicial Garden of Eden, in a state of legal perfection and innocence. But as in the fabled garden, there was a forbidden fruit which was pleasant to the eyes, and ... to be desired to make one wise.

Seductively beckoning was the apple of judicial review, the luscious sin of presuming that the opinions of judges are superior to the acts of legislatures.

The first American jurist to covet this fruit was Justice Samuel Chase of Maryland. He stated in his dissenting opinion to the 1798 Supreme Court decision in 'Calder v. Bull': "I cannot subscribe to the omnipotence of a state legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the state. An act of the legislature contrary to the great first principles of the social compact cannot be considered a rightful act of legislative authority."

While Samuel Chase may have been right about the folly of of the Connecticut Legislature in this particular case, this does not justify his assumption that judges are inherently more qualified to decide what is (as Justice Chase put it) "contrary to the great first principles of the social compact." According to our Constitution the power to enact good or evil into law belongs the People and their representatives; creating law is not the prerogative of a small judicial elite.

Samuel Chase may have been the first and most clear-spoken advocate of original sin, but it fell to Chief Justice John Marshall to craft the most famous and precedent-setting assumption of judicial power in 'Marbury v. Madison'. In writing the majority opinion, Justice Marshall concluded that the Congress had granted the Supreme Court jurisdiction that the Constitution expressly denied it. He convincingly argued that the statute at issue had the effect of altering the Constitution (without following the amending process prescribed in the Constitution) and therefore, the Supreme Court was obliged to declare it unconstitutional. Thus, in one decision, the Supreme Court refused to accept a power given to it by the Legislative Branch, while at the same time it assumed the power of judicial review, something that no legislative body would have ever contemplated granting.

While the power to create or overturn laws is clearly vested in the Legislative Branch, Justice Marshall's reasoning may be defended since it does rest on the very words of the Constitution and the original understanding of those words, and because it argues persuasively against the extension of judicial power through legislative act. And for most of American history, it has been assumed that all three Branches had the same obligation to ignore clearly unconstitutional laws. During the last half of the nineteenth century and the first half of the twentieth century, the Federal courts repeatedly struck down state laws which would have infringed on the property rights of private citizens.

For a few years in the early 1930s, the power of judicial review even restrained the usurpations of the New Deal. But soon the High Court saw the benefit of joining in the power grab, and having once tasted the tantalizing fruit of judicial review, jurists were irresistibly drawn to using that power to assert their authority over the Legislative Branch.

Though under the leadership of Chief Justice Earl Warren the political agenda shifted to the protection of individual liberties, the assumption of greater and greater political power by the courts continued unabated. The Warren Court was the first to openly declare itself the final arbiter of what is and is not constitutional; thus, subtly declaring that the words of the Constitution have no objective meaning beyond what the current black-robed oligarchy says they mean. And this assumption of greater judicial power shows no sign of slowing. Each generation of jurists demands and wields more and more political power. 'Marbury v. Madison' has been distorted by successive generations of legal authorities to justify the assumption of absolute dictatorial powers by the judiciary.

In our law schools today, our most respected legal scholars offer their serpentine arguments in favor of expanding the power of the judiciary. These snake-oil salesmen unashamedly declare to their impressionable students: Ye shall not surely die. For ... in the day ye eat thereof, then your eyes will be opened, and ye shall be as gods, knowing good and evil.

From 'Marbury v. Madison' to 'Roe v. Wade' the exercise of judicial review has inexorably extended the power of the judiciary until it now invades every aspect of American life. It strikes down the will of the people with disconcerting regularity; it enacts political agendas which no legislative body would dare consider. It mandates busing of children; it redraws legislative district boundaries; it levies taxes by declaring our school financing "unconstitutional"; it frees criminals in the name of prison standards; it restructures city councils; it dismembers major corporations (remember the Bell System?); it short-circuits the political debate over abortion. All this it does without concern for the will of the People and without fear of political retaliation. The average American feels powerless to resist the will of this unelected judicial elite --- and the average American is right. He is powerless.

And the Lord God said to Adam, "[behold, thou] hast eaten of the tree of which I commanded thee, 'Thou shalt not eat.' Cursed is the land because of you ... for thou art dust, and unto the dust shalt thou return."


Buck said...

Well said, Bob. I fear things will only deteriorate further in the coming years, at least as far as the federal judiciary is concerned. "Elections have consequences," and the consequences in store may just be the ruination of The Republic as we knew it. Sometimes I think I've lived too long.

Burkulater said...

Agree wholeheartedly.