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The nomination of Judge Samuel Alito to the U.S. Supreme Court once more affords our nation the opportunity to debate the role of judges in our government. The stakes are high. Same-sex marriage, abortion on demand, parental rights, and exclusion of religious expression from the public square to name a few are all at stake.
Frankly, the debate is long overdue. Already the American people are concerned about activist judges. An American Bar Association Journal eReport survey found that 58 percent of Americans believe that judicial activism is a crisis, and that “judges routinely overrule the will of the people” and “ignore traditional morality.” The battle for the courts was driven home by the ranking Democrat senator on the U.S. Judiciary Committee, Patrick Leahy, who said, “This is not over competence. He [Alito] certainly is competent. This is the whole issue of ideology….” The core issue at stake here is the one for which thousands of Americans have given their lives. It is an issue for which our Founding Fathers were willing to sacrifice their “life, liberty and sacred honor.” That issue is liberty. How far we’ve strayed from the vision of our founders was brought home to me during a fascinating presentation by historian David Barton at a recent pro-family legislator’s conference in Dallas. He listed the following five myths many Americans believe about the judiciary, supporting his views with quotes from the founders. Myth 1: The three branches of government are co-equal. How many times have we heard this declared as an undeniable truth. In fact, the U.S. Supreme Court website says as much. However when you read James Madison and Alexander Hamilton in The Federalist Papers you’ll understand something far different about the founders’ intent. Madison wrote, “The legislative authority necessarily predominates,” and Hamilton declared, “The judiciary is beyond comparison the weakest of the three departments of power. The general liberty of the people can never be endangered from that quarter.” Myth 2: Federal Judges hold lifetime appointments. Article III of the U.S. Constitution stipulates that “judges, both of the Supreme and inferior courts, shall hold their offices during good behavior.” The grounds for removal through impeachment in the early years of our nation weren’t limited to criminal activity, but included such misbehavior as drunkenness in private life, profanity, rudeness in the courtroom, and judicial high-handedness. Myth 3: The Judiciary is an independent branch. The American Bar Association website defines judicial independence as “freedom from direction, control, or interference in the operation or exercise of judicial powers …” But Justice Jonathan Mason, who served in the Supreme Court under Presidents’ Adams, Jefferson, and Monroe, said, “The independence of the judiciary so much desired will — if tolerated — soon become something like supremacy. They will, indeed, form the main pillar of this goodly fabric; they will soon become the only remaining pillar, and they will presently be so strong as to crush and absorb the others into their solid mass.” Myth 4: Only judges are capable of determining constitutionality and their primary responsibility is judicial review. The U.S. Supreme Court website declares, “As the final arbiter of the law, the Court functions as guardian and interpreter of the Constitution.” This bold statement in no way reflects that of the founders. Wrote James Madison, “I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out constitutionality?” And Thomas Jefferson wrote, “The opinion which gives to the judges the right to decide what laws are constitutional and what not, would make the Judiciary a despotic branch.” Myth 5: The primary responsibility of the judiciary is to protect the minority from the majority. George Washington said, “The fundamental principle of our Constitution requires that the will of the majority shall prevail.” While these aren’t definitive statements of the founders’ views on the judiciary, they should give us pause when examining what exactly the courts should be doing — and not doing. If nothing else, they reaffirm the limited role judges must have in our society and government. |
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Minnesota Family Council / Minnesota Family Institute 2855 Anthony Lane South, Minneapolis MN, 55418-3265 Phone 612.789.8811, FAX 612.789.8858, www.mfc.org |