The past 60 years -- the lifespan of the 'baby boomer" generation -- has seen an alarming rise of abuses in the American judicial system, by the judiciary. Fundamental constitutional government and the checks and balances established by the founders have been corrupted to the detriment of the people of the United States, striking at the heart of the concept of the "consent of the governed." A minority of the judges are unlawfully and injudiciously taking this country's legal system away from fairness, rationality, and common sense, and in a direction the majority of Americans do not want to go.
Constitutional Issue
The Constitution establishes legislative and executive branches of government to establish policy, make laws, and govern the nation. The role of the judicial branch is to ensure fairness and justice in the application of the laws. The trend over the last century has been for the judiciary to encroach upon the roles of the legislative and executive branches to the extent that unelected judges are now creating policy, rewriting laws and executing executive power. That undermines the foundational principles of this country and establishes a self-established ruling oligarchy, accountable to no one. This is not what the Constitution establishes. This is not what was intended. This is not how it should be today.
Samuel Frances writes in The New American:
"Judicial revolution in the United States -- the process by which the federal courts and especially the Supreme Court have appointed themselves the virtual dictators to determine which laws are valid and which laws are not, without reference to the wishes of voters or lawmakers or even to the text of the Constitution -- consists precisely in overturning the authentic federalism of the Constitution and the states' rights it protects. In virtually every area where the courts have intruded, their rulings have sought to strip the states and local governments of their legitimate rights and powers and to grant illegitimate powers to the federal government. And, perhaps the saddest truth of all, the courts have been able to get away with this vast usurpation of power precisely because neither our elected lawmakers nor the citizens themselves have called them to account, and we have not called them to account because we have forgotten the true nature of our Constitution and the limits it places upon centralized power."
People of America, we have a serious problem, and it's time, yea, past time that we do something serious about it.
Bad Decisions–Wrongly Decided
The Supreme Court has produced bad decisions and spawned confusing rulings throughout American History. Some of those decisions, fortunately, have been reversed by the court or overturned by subsequent history.
Dred Scott Decision, 1856 - This infamous decision held that Dred Scott had no legal standing because of his status as a slave. The decision also ruled that the Missouri Compromise of 1820 (which restricted slavery in certain territories) was unconstitutional. Lincoln pointed out that the inevitable conclusion of this decision would be to either legalize slavery in all states, or abolish it nationally. This decision was corrected by a bloody civil war. The 13th Amendment abolished slavery and the 14th Amendment, in part, corrected the bad judgment of the court. Congress, and the people of the United States, thus reversed the portion of the Dred Scott ruling that declared former slaves were not and could not become citizens of the United States.
Plessy v. Ferguson, 1896 - This ruling established the "separate but equal" doctrine that dominated the political landscape from the Civil War until 1954. This was the court's feeble attempt to pander to then-current social policy instead of correcting a social error. Ultimately, the Supreme Court itself overturned this bad decision in Brown v. Board of Education (1954).
These two decisions are offered as evidence that, from the beginning, the Supreme Court has not been infallible. The Constitution established three branches of government for a purpose. It takes all three, doing their job correctly, to provide the protections and freedoms promised by our founding fathers in the founding documents.
Following are additional bad decisions, wrongly decided, that have not been corrected, but need to be.
Gitlow v. New York, 1925 - Gitlow's conviction for distributing literature calling for the overthrow of the government was upheld, but the Supreme Court extended the reach of certain First Amendment rights to apply to the governments of individual states, in direct violation of the Tenth Amendment (which reserves to the states any powers not directly granted to the Federal Government by the Constitution). Without consideration of the original intent, the Court incorporated specific rights into the due process clause of the Fourteenth Amendment. The result of this action, although the law was upheld, future Court decisions made rulings based on a flawed interpretation of what the Fourteenth Amendment actually does.
Everson v. Board of Education, 1947 - In perhaps the most bizarre ruling in the history of the Court, the 5-4 decision held that the New Jersey statute allowing the Ewing Board of Education to pay for transportation of some children to Catholic parochial schools was Constitutional and did not violate the "Establishment Clause". Despite this finding, the majority opinion, written by Justice Hugo Black, included a sweeping statement that provided Black's (and, subsequently the Supreme Court's) explanation of what the First Amendment Establishment Clause does, including a misapplied quotation taken out of context and credited to Thomas Jefferson, the famous "wall of separation between church and state" comment. Subsequent courts have leapt upon Black's interpretation and used it as a club to redefine two centuries of legislative, executive, and judicial governance. In so doing, the court has blatantly redefined the rather clear original intention (and practice) of the founding fathers and imposed a constitutionally foreign doctrine on the American people. This duplicity has opened opportunity for subsequent decisions to alter policy, violate the people's clear wishes, and make a mockery of the people, their elected representatives, and the legislative process.
Engel v. Vitale, 1962 - The landmark school prayer case based the decision largely upon the misapplication of the "wall of separation" reference in Everson. This is a clear case of twisting words and original intent to a purpose contrary to the purpose and practices of the nation from the beginning. The Constitution states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…." The court misused the Fourteenth Amendment to apply the establishment of religion beyond congress to the states and local government. This is a chilling misapplication of the Constitution. Local control has been a fundamental concept from the beginning. Now local control by the people through their locally elected representatives (school board, city council, state government, etc.) is set aside and subject to the rule of the Supreme Court. The Court has accomplished a feat that the Constitution denied to Congress. Bear in mind that the purpose of the "Establishment Clause" is to protect the church from the state, from the state establishing a "national religion". Instead, modern jurists have turned the club around and used it to bludgeon the church. The very instrument intended to protect the church is used to persecute it. There was never an intention to protect the government from the church. To the contrary, the practice, until 1962, was to encourage the church to influence the government for good. The Founding Fathers recognized that a moral people are a just people. The Court has been pursuing a course that removes morality from the people. Justice is abandoned, too.
Griswold v. Connecticut, 1965 - Noting that the Bill of Rights does not explicitly mention "privacy", the court ruled that the right was found in the "penumbras" of other constitutional protections. "Penumbra" is Latin for "almost shadow" and is the portion of a shadow that results when the source of illumination is only partially blocked. Illumination certainly failed to shine common sense on the Supreme Court as they invented "right to privacy" as a "fundamental right" hitherto unknown. To be sure, privacy is important, and is an important right. The violence that was done with this decision was to extend the sovereignty of the court into yet another arena. Future decisions rely on this invented "right of privacy" to pervert justice and promote decadence.
U.S. v. Vuitch, 1971 - The Court extended the definition of a woman's life or health by ruling that the term "health" should also be understood to include considerations of psychological as well as physical well-being. After Roe v Wade, this decision did extreme violence to America's pre-born children, essentially licensing every woman in the land to be judge, jury, and executioner over any unborn infant having the temerity to inhabit their mother's womb. No other group of people in history has been granted or exercised such life and death power over other human beings.
Roe v. Wade/Doe v. Bolton, 1973 - In perhaps the best known Supreme Court decision of all time, the high court decreed that the slaughter of innocent pre-born infants is a "fundamental right" under their interpretation of the "right to privacy" they previously invented. This outrageous finding invalidated abortion statutes in all 50 states, removing the issue from the purview of the people by judicial decree. Sadly, political leaders elected by the people have lacked the courage or the will to correct this abomination, so 50 million children have been sacrificed to the altar of expediency in a savage act of birth control. The Supreme Court overlooked the more obvious "fundamental right" to "life, liberty, and the pursuit of happiness" as described in the Declaration of Independence. The Court also arrogantly decrees that they are the dispenser of "fundamental rights", instead of the Almighty, as the Declaration declares.
Reno v. ACLU, 1997 - The Supreme Court struck down two anti-obscenity provisions of the Communications Decency Act ("CDA") in the name of "free speech." While freedom of speech is one of the cornerstone "fundamental rights" endowed by the Creator and included in the First Amendment of the Constitution, civilized society has always taken steps to promote civility and protect innocents from perversions, including perverted speech. Common sense and ordinary decency was abandoned and coarse vernacular was exalted to a "protected" status. Freedom of speech would be better served by a better understanding of freedom and responsibility.
Kelo v. City of New London, 2005 - In an astonishing decision completely ignoring the plain words, original intent, and long-standing precedent interpreting the First Amendment, the Supreme Court struck a harsh blow against personal property rights in America, jeopardizing each citizen's right to own, protect, and dispense of their real property. Property was taken from individuals and awarded to a private developer to improve for the purpose of increasing tax revenues for the city of New London. This is a total misapplication of the doctrine of eminent domain and a chilling abuse of government power at the expense of individual freedoms. Since this ruling, local governments have acted at unprecedented rates to confiscate private property.
Legislating from the Bench
A critical consequence of decisions based on a fallacious interpretation or a blatant disregard for original meaning and intent is than unelected elite are creating legislation and law, overruling the clear wishes of the people and the legislative actions of their lawfully elected representatives. These imperious judges are impervious to public opinion and pressures. The courts are increasingly illegally changing social policy, undemocratically restructuring American culture, pompously inventing rights out of thin air, and ruthlessly endangering fundamental freedoms of the people.
Controlling the Courts–Congress’ Job
The Constitution empowers Congress to regulate the courts, a task the modern legislative leaders have been loath to undertake. Article II, section 2 of the Constitution states: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. In all other cases before mentioned [in the first part of the section], the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." Under this provision, Congress could simply enact a law or a series of laws that withdrew from Supreme Court jurisdiction cases involving such issues as abortion, school prayer, pornography, subversion, or any other area in which the Supreme Court has unconstitutionally intruded. Furthermore, Congress can, by law, regulate the use of legal doctrines misapplied because of an incorrect reading or interpretation of the Constitution.
Additionally, Congress can regulate the lower courts by using the power to create "…such inferior courts as Congress may from time to time ordain and establish" (Article III, section 1). Congress must take the leadership in disciplining wayward judges who flagrantly and haughtily abandon the Constitutional limits of their office and assume the rights and exercise the powers of the legislature and the executive. The discipline can be censure, or can proceed to impeachment of those who are flagrant and recalcitrant.
Addressing judicial activism is not an issue of politics or political policy. Rather it corrects an abuse of power which endangers the fundamental structure of our nation, our society, and our personal freedoms.
Lawsuit Reform (Frivolous Legal Actions)
Another troubling consequence of the judicial activism practiced by the American legal system is the explosive growth of frivolous legal actions. Courts and activist lawyers are fostering a litigious society that tramples the rights of the many because of perceived offense to a microscopic minority. Examples of this are the legal actions taken to remove the Mount Soledad Cross in San Diego, actions to remove the Ten Commandments from public display, attempts to remove the words "under God" from the Pledge of Allegiance, and many other nuisance legal activities.
Answers - What We Must Do
The American people can correct this crisis. We must elect leaders who will pursue justice, decency, morality, and virtue. We must hold these leaders accountable for doing their job of finding judges who will follow the law, pursue justice, decency, morality, and virtue without unconstitutionally rewriting laws. We must insist that the legislature write the laws. We must require the judiciary to let the legislature and the executive define public policy. We must seek judges who will judge the law with fairness and justice.
We, the People, must restore the Constitution by insisting that all the branches of government abide by the plain meaning of the Constitution. We must especially insist that federal judges and Supreme Court justices appointed by the President and confirmed by the Senate magistrates who understand the original intent and are committed to upholding the Constitution.
It can start with the election of one of the people, Richard Michael Smith, to the presidency. We need such a leader who will point the way to justice, who has the courage to stand for what is right, who will exercise wisdom and common sense.
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Judicial Tyranny by Samuel Frances. The New American, Vol. 13, No. 08 April 14, 1997. Online at: http://www.thenewamerican.com/tna/1997/vo13no08/vo13no08_supreme_court.htm
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