As we consider filling the vacancy on the Supreme Court, we should ask ourselves what we are really doing. The Supreme Court plays an important role in our government. But should it play an all-powerful role? Should all these vital decisions, and many more, have been made by unelected judges with lifetime tenure?
Supreme Court outlaws prayers in schools. The case involved the New York Regents’ Prayer: “Almighty God, we acknowledge our dependence on Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.” Now there’s something that needed to be outlawed.
Supreme Court rules that the states and the people have no right to define marriage, because the “constitution” requires same-sex marriage to be recognized.
Supreme Court denies the right of the people of California to define marriage in Proposition 8, and denies the right of Congress to define marriage for federal purposes in the Defense of Marriage Act.
Federal court blocks California death penalty, claiming that lethal injection – the way we put beloved dogs and cats to sleep – is “terribly painful.” The people had voted twice to uphold the death penalty.
Florida Supreme Court throws out “Terri’s Law,” claiming that the court and not the legislature – and not her family – has the power to say whether the brain-damaged woman will be starved and dehydrated to death. U.S. Supreme Court allows this decision to stand, and Terri Schiavo dies after 13 days without water or food.
Whether you agree with all these decisions, or some of them, or none of them, the basic question remains: Who decides? Even trivial decisions are already being made by the government – from light bulbs and toilets, to dishwashing detergent and shower heads, to salt shakers and sodas – for our own good, of course.
The people of California, one of the most liberal states, twice voted that marriage should remain between one man and one woman, and they twice voted to uphold the death penalty for first-degree murderers. But all four times, their votes were thrown out by judges. Then officials claim to be shocked – shocked! – when fewer people bother to vote.
The decision on same-sex marriage, like that on ObamaCare, came on a five-to-four vote. Do five people have the power to give orders to 328 million Americans? And do we, and our elected representatives, have no recourse but to obey? Before you answer, consider this:
I know of no safe depository of the ultimate powers of society but the people themselves. – Thomas Jefferson
Contrast this with the situation in the Islamic “Republic” of Iran:
The armed forces, judicial system, state television, and other key governmental organizations are under the control of the Supreme Leader of Iran. The current longtime Supreme Leader of Iran, Ali Khamenei, has been issuing decrees and making the final decisions on economy, environment, foreign policy, education, national planning, and everything else in Iran. ‒ Wikipedia
Liberals talk about “people power.” But in practice, liberals encourage activist judges to legislate from the bench. No matter how you feel about abortion, the death penalty, euthanasia, same-sex marriage, and other key issues, the question remains: Who decides?
As Ben Franklin emerged from the Constitutional Convention, a woman asked what kind of government we would have. He replied, “A republic, if you can keep it.” Well, can we keep it? In fact, have we kept it?
Marriage has been defined worldwide as between men and women since the beginning of civilization. The death penalty has been imposed on murderers since the time of the Bible. Euthanasia has been illegal since the time of ancient Greece. If these millennia-old principles are to be trashed, surely such momentous changes should be:
- Carefully considered, with the input of religious and secular scholars.
- Discussed by the people until a consensus is reached.
- Voted upon by the people’s representatives, or by the people themselves.
If this process had been followed for abortion, there would be much less bitterness today. But the Supreme Court decided the matter. Having learned nothing, courts continue to short-circuit the decision-making process. Courts decide, often by slim margins, the weightiest matters, then enforce their decision on the legislature, the executive, and the people. And so long as the decision goes along with your beliefs, you see no problem.
But what if courts decide to impose their whims on you, and you don’t agree?
- What if courts in a state with a large Muslim population force us to recognize polygamous marriages, as is already happening in Britain and Canada?
- What if courts in another state force us to recognize marriages with 14-year-olds, or with close relatives?
- What if courts order that people over age 70 be denied expensive medical care? Think of the money Social Security and Medicare would save.
But, you say, we’re protected by the Constitution. Really? The Constitution mentions the death penalty four times, but doesn’t mention abortion at all. Yet judges insist that the Constitution contains a right to abortion, but they repeatedly block executions.
What’s there they can’t find, but what isn’t there they do find. “Law” that is unpredictable and arbitrary isn’t law at all, but a series of dictatorial decrees. It loses any moral claim to be respected. Judges are enforcing their own beliefs and calling it “the Constitution.”
This is worse than having no Constitution. If we had no Constitution, laws would be made by legislators, and if we disagreed, we could vote them out at the next election. But a “living” Constitution is James Bond’s double-0 license, empowering judges to do whatever they please – and we can do nothing about it.
Dictators are still dictators, whether they wear brown uniforms or black robes. What will you do when your favorite right disappears? How will you react when you’re ordered to do what violates your deepest beliefs? But then it will be too late. What can we do before that happens?
- Remember what Pastor Niemöller taught us: Speak up, or soon there will be no one remaining to speak up for you.
- Vote for candidates who favor strict – that is, originalist – interpretation of the Constitution.
- When possible, vote for judges who favor strict interpretation.
- Make sure the Senate has a Republican majority, so originalist federal judges can be confirmed.
- Insist that judges interpret the Constitution as actually written and as its authors intended, and not follow their own whims, and certainly not foreign laws.
- Vote, even if your vote may be thrown out by judges. At least you will be on the record.
- Refuse to participate in actions you believe are unconstitutional or immoral. Ultimately, what wedding cakes you bake, what wedding flowers you provide, what wedding photos you take, what you write or teach or preach, or even donate to, and whatever else you do, is between you and your conscience.
Recall what Robert Heinlein wrote:
I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do.
What is decided may be of great importance. But who decides is even more important. In answer to Franklin’s warning, I have to reply, “I don’t know, Ben. I hope we can keep our republic, but it will take a lot of work.”
When Congress passed ObamaCare, a reporter asked then-Speaker Pelosi if it was constitutional. She giggled and asked, “Are you serious? Are you serious?” To some, the Constitution has become a cause for laughter. But not to others. Yes, we are serious. Dead serious.
This is America, not Iran. We have a Supreme Court, not a Supreme Leader. Courts decide cases on the basis of our written Constitution and laws. The Supreme Leader decides everything on the basis of his notion of right and wrong. That is unfortunate in Iran. It is intolerable in America.
Wouldn’t it be nice if we were selecting one-ninth of the Supreme Court, rather than selecting the deciding vote on the Supreme Leadership Council? Then we could all relax and get on with our lives in our constitutional republic.
Note Moses with Ten Commandments
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