Posted on 06/26/2015 4:00:53 PM PDT by Isara
This week, we have twice seen Supreme Court justices violating their judicial oaths. Yesterday, the justices rewrote Obamacare, yet again, in order to force this failed law on the American people. Today, the Court doubled down with a 5–4 opinion that undermines not just the definition of marriage, but the very foundations of our representative form of government.
Both decisions were judicial activism, plain and simple. Both were lawless.
As Justice Scalia put it regarding Obamacare, “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’ . . . We should start calling this law SCOTUSCare.” And as he observed regarding marriage, “Today’s decree says that . . . the Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers on the Supreme Court.”
Sadly, the political reaction from the leaders of my party is all too predictable. They will pretend to be incensed, and then plan to do absolutely nothing.
That is unacceptable. On the substantive front, I have already introduced a constitutional amendment to preserve the authority of elected state legislatures to define marriage as the union of one man and one woman, and also legislation stripping the federal courts of jurisdiction over legal assaults on marriage. And the 2016 election has now been transformed into a referendum on Obamacare; in 2017, I believe, a Republican president will sign legislation finally repealing that disastrous law.
But there is a broader problem: The Court’s brazen action undermines its very legitimacy. As Justice Scalia powerfully explained,
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before the fall. . . . With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
This must stop. Liberty is in the balance.
Not only are the Court’s opinions untethered to reason and logic, they are also alien to our constitutional system of limited and divided government. By redefining the meaning of common words, and redesigning the most basic human institutions, this Court has crossed from the realm of activism into the arena of oligarchy.
This week’s opinions are but the latest in a long line of judicial assaults on our Constitution and the common-sense values that have made America great. During the past 50 years, the Court has condemned millions of innocent unborn children to death, banished God from our schools and public squares, extended constitutional protections to prisoners of war on foreign soil, authorized the confiscation of property from one private owner to transfer it to another, and has now required all Americans to purchase a specific product, and to accept the redefinition of an institution ordained by God and long predating the formation of the Court.
Enough is enough.
Over the last several decades, many attempts have been made to compel the Court to abide by the Constitution. But, as Justice Alito put it, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”
In the case of marriage, a majority of states passed laws or state constitutional amendments to affirm the definition of marriage as between one man and one woman. At the federal level, the Congress and President Clinton enacted the Defense of Marriage Act. When it comes to marriage, the Court has clearly demonstrated an unwillingness to remain constrained by the Constitution.
Similarly, the Court has now twice engaged in constitutional contortionism in order to preserve Obamacare. If the Court is unwilling to abide by the specific language of our laws as written, and if it is unhindered by the clear intent of the people’s elected representatives, our constitutional options for reasserting our authority over our government are limited.
The Framers of our Constitution, despite their foresight and wisdom, did not anticipate judicial tyranny on this scale. The Constitution explicitly provides that justices “shall hold their Offices during good Behaviour,” and this is a standard they are not remotely meeting. The Framers thought Congress’s “power of instituting impeachments,” as Alexander Hamilton argued in the Federalist Papers, would be an “important constitutional check” on the judicial branch and would provide “a complete security” against the justices’ “deliberate usurpations of the authority of the legislature.”
The Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it.
But the Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it. It was clear even before the end of the founding era that the threat of impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the justices. Today, the remedy of impeachment — the only one provided under our Constitution to cure judicial tyranny — is still no remedy at all. A Senate that cannot muster 51 votes to block an attorney-general nominee openly committed to continue an unprecedented course of executive-branch lawlessness can hardly be expected to muster the 67 votes needed to impeach an Anthony Kennedy.
The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself. The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed that will restore health to the sick man in our constitutional system.
Rendering the justices directly accountable to the people would provide such a remedy. Twenty states have now adopted some form of judicial retention elections, and the experience of these states demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability. It also restores respect for the rule of law to courts that have systematically imposed their personal moral values in the guise of constitutional rulings. The courts in these states have not been politicized by this check on their power, nor have judges been removed indiscriminately or wholesale. Americans are a patient, forgiving people. We do not pass judgment rashly.
Yet we are a people who believe, in the words of our Declaration of Independence that “when a long train of abuses and usurpations . . . evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.” In California, the people said enough is enough in 1986, and removed from office three activist justices who had repeatedly contorted the state constitution to effectively outlaw capital punishment, no matter how savage the crime. The people of Nebraska likewise removed a justice who had twice disfigured that state’s constitution to overturn the people’s decision to subject state legislators to term limits. And in 2010, the voters of Iowa removed three justices who had, like the Supreme Court in Obergefell, invented a constitutional right to same-sex marriage.
Judicial retention elections have worked in states across America; they will work for America. In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants, I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.
As a constitutional conservative, I do not make this proposal lightly. I began my career as a law clerk to Chief Justice William Rehnquist — one of our nation’s greatest chief justices — and I have spent over a decade litigating before the Supreme Court. I revere that institution, and have no doubt that Rehnquist would be heartbroken at what has befallen our highest court.
The Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.
But, sadly, the Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.
And if Congress will not act, passing the constitutional amendments needed to correct this lawlessness, then the movement from the people for an Article V Convention of the States — to propose the amendments directly — will grow stronger and stronger.
As we prepare to celebrate next week the 239th anniversary of the birth of our country, our Constitution finds itself under sustained attack from an arrogant judicial elite. Yet the words of Daniel Webster ring as true today as they did over 150 years ago: “Hold on, my friends, to the Constitution and to the Republic for which it stands. Miracles do not cluster and what has happened once in 6,000 years, may not happen again. Hold on to the Constitution, for if the American Constitution should fail, there will be anarchy throughout the world.” We must hold fast to the miracle that is our Constitution and our republic; we must not submit our constitutional freedoms, and the promise of our nation, to judicial tyranny.
— Ted Cruz represents Texas in the United States Senate.
If he endorses, he'll do it at the moment of maximum impact.
The lawless Federal employees in black robes have no legitimacy.
Got it, thanks.
Just can’t help thinking that one, just one little Article V amendment making it over the finish line will put an end to the Progressive Era.
Please don’t use the name “ Con Con”, thank you.
A lot of people have picked up the name “Con Con” in error and it’s wrong. But I agree with the rest of your sentiment.
The Convention of States is not a Constitutional Convention. It is simply a meeting of state delegates appointed by state legislatures to propose amendments. Each amendment would have to be ratified by 38 states. So you can see the Constitution will be left intact.
I am impressed. Ted Has my vote, and my wifes. This is a great man
Frankly at this point it doesnt much matter, The text of the constitution is held meaningless by the Federal employees in black robes who have invested in themselves sole authority to define it anyway they want.
This is of course what we call “rule of men” in practice not “rule of law”. Our natural rights as free men will not and cannot survive so long as it precise.
We either have a constitutional convention to restrain and bring accountability to this lawless body or we will have no constitution at all.
You’re right that the SCOTUS is lawless, but what’s the harm of trying to amend the constitution or even impeach judges? Sure. We’re likely to fail, but we should make every attempt to peacefully resolve these issues.
In this gay marriage ruling, the Supreme Court literally took every other democratic, peaceful means of resolving the issue—short of a constitutional amendment—from us. We can discuss it as much as we want (free speech and all—HA!), but a constitutional amendment is the only recourse left short of open rebellion (non-violent civil disobedience or violent revolution). No law, no vote can change a Supreme Court ruling—only a constitutional amendment or a rebellion. I’ll still choose the former.
Yes, and we all have to find a way to stop the GOPe from splitting out vote until most conservatives have given up and stopped voting (as they did last time.)
That's their tactic,
Cain peaks, destroy him
Gingrich peaks destroy him
Perry peaks, destroy him
Santorum peaks, destroy him
And for every sacrificial lamb, their followers wilt in disillusionment. So if they keep a Paul in the race to water it down (Ron Paul, Rand Paul, whatever) they're assured an establishment candidate in the end.
We need to get behind Cruz early and stay there. It doesn't matter what promises the others make, Cruz has fought the establishment since he was elected. He's the only one willing to buck the system no matter the cost and he will make an incredible President. If you insist on nitpicking him then get ready for President Bush the 18th whatever.
I refuse to believe gay marriage is really all that popular, and even if most Americans support it, I doubt a majority supports trampling free exercise of religion...yet. The proof is simple. If the left truly had the numbers, they could have won this democratically in the statehouses. The fact that they went judicial and short circuited the democratic process implies they felt they couldn’t win or simply thought it was too risky or too slow. It’s just so much easier to hammer everyone into place with an edict from the black robed tyrants.
Now there’s a guy I would happily vote for if he were to run for the POTUS.
No I meant a full out convention. We have to rewrite core articles or the moonbats in Washington will simply ignore the edicts. Or toss it out and write a replacement. The best way to control the three branches is to scratch their authority out of it altogether! Replace the branches. Everyone goes home.
We’re ready for it. Don’t be afraid as the existing articles and amendments are useless when all 3 branches are dysfunctional and ignore them anyway.
Better that than kicking the can down the street.
Agreed. The best way to control power in Washington is to give that power to someone else. Amendments really can’t do that.
“How is tyranny to be restrained?”
After everything else has failed.. force.
Time to start discussing Article V in bible studies, community groups, etc.
Make it known, far and wide.....our last stop.
The only on that understands that Obamacare is the real Job killer and NO jobs will return unless this is repealed.
Unless you're thinking of it being the eradication of the 14th Amendment, it won't work.
While I agree with many of the points that Cruz has made about corrupt justices, the Framers arguably did not underestimate the justices’ craving for legislative power.
More specifically, although the Founding States gave the Senate the power to confirm justices to the Supreme Court, the ill-conceived 17th has given senators elected by low-information voters the opportunity to to corrupt the entire federal government by allowing activist presidents and justices do corrupt Congress's dirty work for it. This is evidenced by the corrupt, Constitution-ignoring justices that are now on the bench.
In other words, if the 17th Amendment had never been ratified then we probably wouldn’t be looking for a way to impeach activist justices who ignore 10th Amendment-protected state powers to prohibit constitutionally unprotected gay marriage since there probably wouldn’t be an activist justice majority like there is now.
The 17th Amendment needs to disappear, and corrupt senators, lawless presidents and activist justices along with it.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.