THE BATTLE OVER SUPREME COURT APPOINTMENTS
The increasing contentious battles over confirming nominations of federal judges are a byproduct of judicial supremacy. Before the present era of judicial supremacy judicial appointments only raised issues of the nominee’s qualifications. Now that judges have assumed political power and make decisions on their personal political opinions, it becomes necessary for the confirmation process to ascertain what are those opinions.
The first time the Supreme Court decided it was the supreme law of the land was in the Dred Scott decision of 1857, where the Court determined in a 7-2 decision that slaves were not legal persons and therefore were not protected under the Constitution, saying “A black man has no right which the white man is bound to respect.’ Despite slavery’s legality, however, Abraham Lincoln challenged its morality. “If slavery is not wrong,” he said “then nothing is wrong.”
Lincoln accepted judicial review as binding in the case, but he rejected judicial supremacy---the notion that the Supreme Court was supreme in creating new laws for the nation—because that would abolish self-government and submit us to the rule of judges. Lincoln identified the evil of judicial supremacy: “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 instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of the eminent tribunal.”
Lincoln rejected the notion that an “eminent tribunal” should be allowed to make public policy. That would mean submitting to the rule of judicial supremacists rather than to the Constitution and the rule of law.
The Dred Scott decision increased the conflict over efforts to restrict slavery and pushed our country toward a terrible war to correct the injustice of the power-grabbing Supreme Court.
Unfortunately we have failed the principles of our constitution that Lincoln so clearly understood.
Anyone who thinks that we need judicial supremacy to protect the rights of minorities must accept that judicial supremacists gave us the injustice of the Dred Scott decision, and remember George Washington’s warning that we should permit the Constitution to be amended only in the way that the Constitution provides: “Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
On March 8, 2004, in Dallas, Presidnet Bush delivered the challenge: “We will not stand for judges who undermine democracy by legislating from the bench and try to remake the culture of America by court order.”
In an effort to stimulate public awareness, President Ronald Reagan addressed the volatile issue of abortion in his first book written while President of the United States saying: “Make no mistake, abortion-on-demand is not a right granted by the Constitution…But the Court’s decision has by no means settled the debate. Instead, Roe v. Wade has become a continuing prod to the conscience of the nation. Abortion concerns not just the unborn child, it concerns every one of us.”
If we truly believe in self-government, we must take a major role in reforming the Imperial Judiciary. We must require every candidate for Congress to commit to restoring self-government by legislating historical limits to the federal judiciary’s powers. The alternative is an unelected judiciary who trample on our most precious traditions and customs. The moral crisis our nation suffers from today is largely the result of court decisions that overturned longstanding laws and customs designed to protect all human lives, morality, marriage, family integrity, and patriotism.
Cliff Zarsky 5 July 2005