When Majority Rule is Illegal (Brummett Deconstructed)

At various times and places in history, majority rule has been illegal. John Brummett argues for the same here at home in a recent column.
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John Brummett recently wrote a column entitled "When Majority Rule is Illegal." The concept he defends in the column can fairly be defined as "judicial supremacy". It is most pithily expressed in a quote by former Chief Justice Charles Evans Hughes who, in a speech in 1907, said “we are under a Constitution, but the Constitution is what the judges say it is...”

Judicial supremacy undermines the rule of law, for it removes any fixed basis for law. "The Law" then becomes whatever the judges say it is today, and new judges can arbitrarily decide to change it the following year. This shows itself apparent in cases like Lawrence v. Texas, where the Supreme Court overruled itself from only 17 years before and told the states that in the intervening space of time they discovered that states had no right to make sodomy illegal.

Whether one agrees or disagrees with making sodomy illegal, the plain fact is that there is no prohibition in the US Constitution against any state making any sex act illegal. Clearly then, it falls under the ninth and tenth amendments where all powers not explicitly given to the federal government are retained by the states, or by the people.

Without a fixed basis for law, various interest groups are motivated to litigate and re-litigate their causes. Each one hopes that the judges of today will rule more favorably for them than the judges of yesterday. No one knows for sure what the rules are, because there is no fixed basis for law. Lawyers, and wearing a black dress does not make a judge any less a lawyer, love this system because it keeps the rest of us going back to the courts again and again.

The original intent of the lawmakers is the traditional fixed standard of law. Viewing the Constitution as a "living document" negates this traditional fixed standard. The Founders provided a process by which the document may be amended, and it requires the approval of the people. If the meaning of the constitution must be altered, let it be by legal means- the process of amendment. These other methods of claiming altered meanings for the constitution represent a judicial coup d'etat against the constitution they all swore to uphold.

Concepts like "Judicial Review" (of anything that is not expressly prohibited by the Constitution) and "living documents" along with expanded and altered definitions of words like "equal protection" and "due process" are all usurpations. The judges awarded themselves these extraordinary powers, they were not conferred on them by the people or their elected representatives. Each advance of the doctrine of judicial supremacy, in whatever form, represents a mini coup d'etat against the Constitution.

The doctrine of judicial supremacy also raises the judiciary above the constitution itself, which is the very document which gives them any authority at all. To give any one subset of America a monopoly power on interpreting the Constitution is to raise them above the Constitution's control. It is the responsibility of every holder of public office and every voter to determine when public officials act outside the purview of the Constitution. That's the only way it can serve its function to protect our liberties and check excesses of the federal government.

What I am describing here is a system of checks and balances. The essential doctrine of checks and balances is undermined from its foundations with the doctrine of judicial supremacy. The Founders set up our government with divided powers precisely because they knew that power corrupts. I believe it was Daniel Webster who said the the very definition of tyranny was when all power is gathered together in one place. Now we find ourselves in a position where for all practical purposes all power has been gathered into one place, and the judiciary is that place. The other branches provide an elaborate facade of cover for the illusion that the people still govern themselves, while the judiciary intervenes to advance statism.

As originally conceived, the branches of the federal government were to balance each other, and the states were to balance the feds. Even the people were to be balanced by a cumbersome process of checks that reduced the ability of the passions of the day from threatening the legitimate rights of some minority group. A legitimate part of that check was, in proper measure, the judiciary. But today's judiciary has squandered their credibility with the people regarding their legitimate powers by means of their continual illegitimate exercise of assumed powers.

These checks and balances have been lost, and as a result we see our liberties rapidly being lost. I call for electing executives who will refuse to enforce extra-constitutional rulings by the courts, and legislators who will reign in the authority of the courts and impeach judges who usurp powers not given them under the constitution.