Judicial Totalitarianism

Our founders displayed great wisdom in establishing our government. Knowing that we can’t trust human beings, they created a division of power among our three branches of government. Even within those divisions there is sufficient give-and-take to ensure reasonable governance. For example, if Congress passes a bill, the President has the opportunity to veto it. If he vetoes the bill, Congress has the opportunity to override the veto. Many other checks and balances ensure that power is sufficiently diffused so as to prevent dictatorial control by anyone.

The major check placed on the Supreme Court resides in its obligation to adjudicate based on the Constitution. They are not given the freedom to make decisions based on their own desires or prejudices, but rather they are required to be guided by the Constitution in their determinations regarding the cases before them.

However, this requirement has become compromised by those viewing the Constitution as a living, breathing document who take a position that with the growth of our nation and the passing of time we cannot apply the Constitution as originally written. Therefore, Supreme Court justices have both the latitude and responsibility to make decisions based on what they believe to be the most judicious perspective in light of contemporary realities. Those such as Justice Anthony Scalia, who is committed to a more literal view of the Constitution, are referred to as originalists, while those assigning justices greater latitude in decision-making are referred to as non-originalists.

A highly significant underlying problem results from the non-originalist perspective. The view that the opinion of Supreme Court justices are the final arbiters of American law and not the Constitution cuts the Supreme Court free from the control of the Constitution, making the justices a law unto themselves. Therefore, this non-originalist perspective leaves no checks and balances on Supreme Court justices. They have assigned themselves the authority to use their own discretion in making judicial decisions.

Taking this power to themselves is especially egregious since these justices are not elected but appointed, and their appointment is for life. Therefore, even the ballot box has absolutely no influence over them. They possess totalitarian powers.

To make matters worse, because they are the final arbiter of the law, and thus they are a law unto themselves, they have the latitude to use the law to expand their powers. One example of this is found in the use by the Court of the Interstate Commerce Clause to expand the power of the federal government. In short, the thought process goes like this. The federal government has authority to oversee interstate commerce. However, if you buy a box of crackers you are affecting interstate commerce. Even if those crackers are made and consumed in your state, this affects interstate commerce because their sale has an effect on the sale of crackers produced in other states since if your in-state company did not exist, companies in other states would sell more crackers. Therefore, the interstate commerce clause gives the federal government authority to regulate virtually every commercial transaction. This perspective not only gives the federal government virtually unlimited authority over commerce, but since the Supreme Court constitutes a components of the federal government, viewing the interstate commerce clause from this perspective expands its own authority.

Likewise, since courts have become a law unto themselves, if they become involved in judicial activism, in effect making laws, a prerogative assigned by the Constitution to the legislative branch, who is to say that they have no authority to do so. They are the final arbiters, and if they decide that the law gives them the latitude to legislate from the bench, no governmental entity has the prerogative to overrule that decision.

This brings us the imminent Supreme Court decisions regarding gay marriage and Obamacare. With the courts cut loose from the Constitution, in effect they can make any ruling that they please. It is possible to make a case for any decision they make. The ruling on the “Individual Mandate” by Chief Justice Roberts represents a case in point.

Whatever they rule in these cases, the fact remains that as Christians we are legally subject to their whims and prejudices. We have no more political protection than the over 57 million babies whom they consigned to horrific deaths. In taking upon themselves the latitude for that unspeakable atrocity, they are exercising greater totalitarian power than Joseph Stalin, and they have been equally as brutal in their decisions.


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