A most unfortunate encroachment on American democracy

By By Jasyn Jones and By Jasyn Jones

By Jasyn Jones

There is a truism, long known among every culture and every nation: It’s easier to destroy a reputation than build one. For references, see Gary Hart, Jayson Blair, Bob Packwood, Trent Lott or the United States Supreme Court.

That last reference may confuse some people. After all, isn’t the court the most revered member of the federal troika?

Ah, if it were only so.

The Supreme Court’s career began in obscurity. During the Constitutional Convention of 1787, great amounts of energy were exhausted in examining the roles of government. The duties of the president were delineated, the great compromise gave us the Senate and the House of Representatives. The Supreme Court, on the other hand, seemed merely an afterthought. Its duties were unclear, its role largely undefined.

It wasn’t until Chief Justice John Marshall established the right of judicial review-against the outcry of the nation, President Jefferson and Congress-that the Supreme Court came into its own. Judicial review is the principle that the Supreme Court has the final say on whether or not any law, regulation or statute is “constitutional,” that is, acceptable under the Constitution (the supreme law of the land).

This power is absolute. If the Supreme Court says that a certain law doesn’t pass constitutional muster, then that law is stricken from the books forever (or at least until another case reaches the court). Neither Congress nor the president nor the American people can gainsay the court-its word is final and binding on all citizens of the country.

That such an undemocratic power is vested in a tiny body of judges is an oddity in our open and democratic system of government. In a country where “one man, one vote” is a rallying cry, the power of the court represents “280 million people, 9 votes.”

The decisions the court makes are binding. It bears upon the most fundamental matters of law. All jurisdictions must follow the precedent it sets. It is therefore incumbent on the members of the court to exercise this power most carefully.

As Abraham Lincoln said, “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…the people will have ceased to be their own rulers…having practically resigned their government into the hands of that eminent tribunal.”

The Supreme Court has, from time to time, grossly exploited this power, enlisting upon one side or another in the partisan game of politics. In 1857, the Taney Court (in the Dred Scott case) held that no black man could ever be a citizen of the United States.

In Taney’s words: “We think [people of African ancestry] are…not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges [of] citizens of the United States…”

The Supreme Court had, in one fell swoop, overturned generations of abolitionist efforts, disenfranchised all blacks and set our country on the road to Civil War.

Other cases are just as odious, including 1892’s Plessy v. Ferguson, which upheld racist Jim Crow segregation laws. That case was the law of the land until 1954. It consigned millions of blacks to second-class status, forcing them to patronize separate-but-worse schools, restaurants, movie theaters and virtually everything else.

It is clear that the power vested in the court ought be wielded with restraint, foresight, judiciousness and an eye toward the Constitution. Unfortunately, the modern Supreme Court seems little disposed to such niceties.

Where once the court consulted the Constitution when making decisions, a steady seepage of left-wing thought has perverted this necessary restraint. The drastic desire to impose political decisions upon the country (coupled with the means to do so) has proven a temptation too strong to resist.

Beginning with Griswold v. Connecticut (in 1965), the Supreme Court invented a spurious “right to privacy,” a right that had been lurking unnoticed for nearly 200 years, hidden in the emanations of the Bill of Rights. What this right to privacy entailed was ill explained, and further decisions (Roe v. Wade, Doe v. Bolton, Lawrence v. Texas) have only expanded it.

The language underlying the above decisions are becoming vaguer and vaguer, their content unclear and their applicability uncertain. The most recent case (Lawrence) even cites the laws and public opinion polls of Europe. Why the attitudes of European peasants matter more than the text of the U.S. Constitution is inexplicable. That the court feels the need to cite such opinion polls to bolster its case only makes it clearer-it is ignoring the constitution in favor of its own political predilections.

The Supreme Court has embarked on a dangerous course. It has, absent of any reference to the Constitution or the laws of the land, begun overturning law after law, dictatorially handing liberals victories they could not win democratically. It has taken power from the citizens and turned it over to itself, making the opinions of nine black-robed Caesars infinitely more important to the governing of America than the mass democratic will of the 280 million “rest of us.” In doing so, the court has wrought great damage to the concept of the impartial court, that same court’s reputation and the sacred principle of self-government. Lincoln’s warnings have been validated, and (as Dred Scott and Plessy proved) we will all pay the price.

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