(I’m trying to limit my consumption of Anthony Trollope, so I’ll still have a few of his books to read this fall. They come in a very convenient pocket size, as thick as they are wide, which will fit in my white-coat pockets, unless I have too many notes and formulas in there instead.)
Men in Black, by Mark Levin, is a concise, fact-filled documentation of the development of judicial tyranny in America. It was eye-opening to me, since, read as much history as I can, I am still relatively young, and thus deeply influenced by modern assumptions. I actually thought the job of the Supreme Court was to review and strike down laws. According to Levin’s quotations from the Federalist Papers and other writings of the Founding Fathers, the courts are meant only to deal with interpretation of the law: has it been broken, or has it been applied correctly; not with whether the law ought to be the way it is, or not. This philosophy is so radically different from what has been practiced by the Supreme Court and other high courts for at least the past 60 years, if not more, that I had to keep stopping and reminding myself of it as I was reading.
Imagine that: if a legislature votes something, it stays that way. What a weird idea. You mean nine men (or sixteen, or whatever) in black don’t get to overrule the elected legislators? Think about it. That means if the legislature says this is how the election works, the court doesn’t get to fix it. If the legislature says gays can’t get married, the court can’t fix it. If the legislature says babies can’t be aborted this way, the court can’t fix it. Wow. If the people pass a referendum saying no affirmative action in state college admissions, the court can’t fix it.
Wouldn’t it feel strange if our representatives actually got to make the laws themselves? Wouldn’t it be interesting if the people decided the law, not an oligarchy of men in black?
This book introduced me to a powerful new concept of what freedom really meant to the Founders, and at the same time revealed how far we’ve fallen, how much liberty we’ve already lost, and what an uphill fight it will be to get any back. I was both excited at the idea of individuals exerting such control over their own lives and businesses, and depressed at the realization that, just when I’m beginning to understand, this freedom is slipping away, almost beyond redemption.
Levin documents a number of areas (church and state, abortion, homosexuality, affirmative action, immigration, terrorist prisoners, political speech, election process) where the Supreme Court has over the last several decades arrogated to itself greater and greater powers of review and dictation, which override the clearly stated desires and intentions of the people and their elected representatives. This book is a valuable resource because it collects all these noted cases, plus many less well-known precedents, giving clear quotations and summaries from the actual decisions and dissents.
However, the more evidence I see of judicial tyranny, the less I hope I see of escaping. Basically, the judiciary branch of government has assumed the right to second-guess and override the decisions of the legislative and executive branches. And our elected legislators, governors, and president(s) have allowed the judges to do this. Even so-called conservative politicians assume that judges are always right. Somewhere along the line, we have conceded that judges, unelected, unaccountable as they are, are infallible, whereas representatives and executives, subject to frequent elections and investigations, are more fallible and prone to misinterpret or abuse the law. Regarding two Supreme Court decisions allowing the courts to review the executive’s decision to hold enemy prisoners, Levin writes:
The Supreme Court somehow believes that courts are more qualified or trustworthy to rule on detentions. Butt why is that? Why is it assumed that judges are more competent in weighing the rights of individuals against national-security needs? The ingrained bias against the elected branches and their ability to make well-reasoned and just judgments is destructive to the entire notion of representative government. If elected officials cannot be trusted to make wise decisions about national security, then they cannot be trusted to make decisions at all.
Another example of this can be seen the tragic case of Terri Schiavo. As I believe, the judges were allowing a woman to be tortured and murdered. Now, admittedly, it doesn’t matter so much what I think. But the Florida legislature and Governor Bush also believed that she was being murdered, or at least that she was not being adequately protected. However, they were so overcome by deference to the judicial branch that they did nothing to save her, even when they were firmly persuaded that justice was not being served. The courts were wrong to rule as they did regarding Terri Schiavo, and the Governor was even more wrong, in that he submitted to them. All branches of government are responsible to uphold the laws and constitution. But when two branches agree to submit themselves to the third, what can we do? To whom shall we look for redress?
Two suggestions: 1) Stop looking either to courts or to elections for salvation. Trust in God’s providence, raise up Godly children, build Godly communities, and wait for the false worldviews of humanism and socialism to bring about their own destruction. Then, in 300 years or so, Christian freedom and republican government can arise from the ashes. Too bad we probably won’t live to see this.
2) More immediately, move to New Hampshire. The Free State Project is a group of libertarians who have studied the separatist movement in Quebec, made calculations on the ratio of dedicated to separatists to total population, and concluded that in a state the size of New Hampshire, a group of 20,000 libertarians can sway the state government enough to reestablish liberty there, and eventually defy the federal government if necessary. I will be looking out for residency programs in New Hampshire.