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Moral Mandate For Courts
American Conservative Union Foundation ^ | 21 Nov 04 | Marc A. Levin, Esq.

Posted on 11/24/2004 8:32:50 PM PST by Ed Current

What mandate on moral issues, if any, did voters deliver to President Bush in the 2004 election? While liberal activists have attributed Bush's victory to homophobia, exit polls indicated that 35 percent of Americans favor gay marriage while another 25 percent support civil unions. Similarly, a majority of Americans favor restrictions on abortion, but not an outright ban. However, there is a consensus favoring the appointment of conservative judges who recognize that judicial restraint is itself a moral value.

A September AP-Ipsos poll revealed that 56 percent of Americans prefer the appointment of conservative judges while only 37 percent prefer liberal judges. A clear majority of Americans believe that judges should strictly interpret the law and that legislation from the democratically elected branches of government, not from the bench, should be the engine of social change.

The common thread in nearly all of the moral issues that influenced the election is that judges have pushed the legal envelope, creating new rights out of whole cloth where there is no public consensus. The most obvious is abortion. In its 1973 Roe v. Wade decision, the Supreme Court miscalculated, believing that the legalization of abortion in some states at the time presaged a public consensus in favor of abortion that has materialized in Europe, but not here.

It is no accident that it was the Massachusetts Supreme Court decision declaring a new right to gay marriage, not the U.S. Supreme Court's Lawrence decision finding a right to sodomy, that most influenced the election. Both rulings, like Roe, rest on the tenuous foundation of a judicially created right to privacy that is unmentioned in the U.S. or Massachusetts Constitution. However, unlike in Roe, the U.S. Supreme Court in Lawrence did not misread public opinion. Even the minority of states that prohibited sodomy rarely enforced their laws.

As with abortion and gay marriage, federal courts have legislated against the public's will on the issue of religion. In 2002, a federal appeals court struck down "under God" in the Pledge of Allegiance, a tradition so overwhelmingly supported by the American people that the U.S. Senate voted 99-0 to oppose the court ruling. Federal courts have also invalidated popular public displays of the Ten Commandments, even though a frieze of the Commandments is emblazoned on the walls of the Supreme Court.

The rulings on the Pledge and Commandments are unsupported by the wording or intent of the Constitution, which was simply designed to ensure there would be no federal church and every American would be free to practice their own religion, or no religion at all. Given that the same Continental Congress that declared America's independence began with a prayer delivered by a minister, it is inconceivable that the founders intended to eradicate religion from the public square.

Beyond any one moral issue, Princeton University Professor Robert George has argued that judicial restraint itself is a moral value. The liberal notion of a "living Constitution" that can effectively be amended by an unaccountable judicial elite clearly contradicts the democratic concept of rule by the people. A judicial dictatorship is no more moral than any other kind of tyranny.

Nonetheless, judicial review is a valuable check on absolute majority rule, protecting those rights so fundamental that they have been enshrined in the Constitution, ensuring that they will not be denied to an unpopular group at a time of great public passion. However, only a jurisprudence constrained by the literal wording and original intent of America's founding documents can possibly keep this useful check on majority impulses from inviting judicial lawmaking.

Many Democrats have wondered how they can regain a foothold in the heartland without changing their views on abortion, gay marriage, and religion in the public square. Their solution is to renounce judicial activism as a means of social change and instead patiently pursue public consensus through persuasion and debate.

Remarkably, there are signs this may be occurring. A November 12 New York Times article entitled "Caution in Court for Gay Rights Groups" reports that these groups are largely discarding their original plans to challenge the anti-gay marriage ballot measures, concluding from the large majorities favoring them that a virulent backlash would be triggered even if they won in court.

As President Bush prepares to fill the anticipated vacancies on the Supreme Court, Democrats in the Senate should heed the example of gay rights activists and reject judicial lawmaking as an instrument of social change. After all, even if Roe is overturned, abortion will not thereby be outlawed, but merely returned to the democratic process in state legislatures throughout the country. As we promote democracy in Afghanistan and Iraq, perhaps more democracy at home is nothing to be afraid of.

Marc A. Levin, an Austin attorney and former law clerk on the U.S. Court of Appeals for the Fifth Circuit, is President of the American Freedom Center (


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; News/Current Events
The following quote from Andrew Jackson is a concise statement of Constitutional principal that has been ignored, or forgotten for many decades. The prevailing myth seems to be that the Constitution is what the federal judiciary says it is, regardless of the extent of deviation from text or intent, and that all others who are bound by an oath of Office in Article 6, Clause 3 are forbidden to act on their understanding of the text they are sworn to uphold.

Article 6, Clause 3 contains no Oath or Affirmation, to support a judicial opinion. The plain text of the Constitution reveals separation of powers, checks & balances and coordinate functioning of three branches that aren't coequal in power. Power of impeachment and funding resides in Congress alone. The President has the power of enforcement. The Supreme Court has only the power of opinion, which has become far more biased in its increasing disregard of plain text than the mainstream media has been in its disregard of plain fact.

Where are the mighty bloggers?

The Avalon Project : President Jackson's Veto Message Regarding ...

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

The Avalon Project : Federalist No 78

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186.

The Avalon Project : Federalist No 51

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates

Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 - Justice Scalia, with whom the Chief Justice, Justice White, and Justice Thomas join, concurring in the judgment in part and dissenting in part.

Justice Curtis's warning is as timely today as it was 135 years ago:

"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought tomean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).

The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges--leading a Volk who will be "tested by following," and whose very "belief in themselves" is mystically bound up in their "understanding" of a Court that "speak[s] before all others for their constitutional ideals"--with the somewhat more modest role envisioned for these lawyers by the Founders.

"The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . ." The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).

Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration ("There is a limit to the amount of error that can plausibly be imputed to prior courts," ante, at 24), with the more democratic views of a more humble man:

"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).

AEI - Publications

Beneath the Supreme Court's many astounding decisions in its 2002-2003 term, and the shifting judicial coalitions that produced those results, runs a unifying basso continuo: Constitutional law, in the sense of judicial decisions that are guided--at least in aspiration--by the text, structure, and logic of the written Constitution, is dead. It has been replaced, often as a matter of explicit doctrine, with subjective judicial impressions of popular sentiment or political utility. Federalist Outlook, The Term the Constitution Died, Michael S. Greve,Friday, July 25, 2003

If the above comments seem exceedingly strange, further investigation may be necessary:


The Avalon Project : The Federalist Papers #s 78-83.

Dred Scott | Washington University in St. Louis This suit began an eleven-year legal fight that ended in the U.S. Supreme Court, which issued a landmark decision declaring that Scott remain a slave.

Congress, The Court, And The Constitution

Government by Judiciary:The Transformation of the Fourteenth Amendment Sec Ed, Raoul Berger

Democracy by Decree | by Ross Sandler and David Schoenbrod offer measures that they believe would restore politically accountable law, but American democracy might be too far gone. The will to fight has departed from legislative bodies, and the American people are distracted and uninformed. Legislators, mayors and governors have learned they can avoid making political enemies by letting judges decide divisive issues.

1 posted on 11/24/2004 8:32:50 PM PST by Ed Current
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To: Ed Current

This oft-repeated 35% for gay marriage and 25% for civil unions is a CROCK! The Ohio amendment bans both, and it got over 60% support! Live by polls and you will DIE BY POLLS!

2 posted on 11/24/2004 9:40:14 PM PST by guitarist (commonsense)
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To: Ed Current

read later!!

3 posted on 11/24/2004 10:57:16 PM PST by LiteKeeper (Secularization of America is happening)
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