The First Things website carries a provocative essay by Richard John Neuhaus. The essay explores the contention that, as Anti-Federalists feared in the 1787-89 Constitutional ratification debate, the judiciary has come to be the dominant power in the Federal government.
Without exaggeration, it can be said that most of the activist, anti-traditional measures of government have been judicially imposed. Those have been predominantly aimed at outlawing Judeo-Christian morality, notably Roe v Wade and measures to banish spiritual religion from education and politics, while encouraging an accelerating descent into the cesspool of sensual gratification.
Such measures were judicially imposed precisely because there never has been sufficient public support for them to gain passage in Congress. Federal judges have simply legislated what, in their person opinions, the law ought to be.
The effect of judicial activism since the late 1950s has been an unconstitutional establishment of atheistic socialism as the official religion of the United States.
Beginning with Chief Justice John Marshal’s Marbury v Madison decision, the courts have increasingly exercised legislative power, overriding Congress. In the regard, see also Judicial Activism - Summary of Prior Postings.
The following are key excerpts from the First Things essay:
Budziszewski suggests we should pay more attention to the anti-Federalist writer who styled himself as Brutus and was probably New York’s Judge Robert Yates. Brutus claimed that the Federalists, and Madison in particular, were vastly overestimating the way in which their famous “checks and balances” would keep the judiciary from becoming the controlling power in the new political order.
Some readers will remember that there was a great brouhaha when, in November, 1996, First Things published a symposium titled “The End of Democracy?”
A lot of commentators overlooked the question mark. Contributors included Robert Bork, Robert P. George, Hadley Arkes, and Russell Hittinger, and the crisis was described as “the judicial usurpation of politics.” ... In time, many critics, including Commentary, came around and agreed that, yes, there is something very much like a crisis and, yes, the courts, led by the Supreme Court, have gone a long way toward usurping the political (meaning mainly legislative authority) in this constitutional order.
In “Civilizing Authority,” Budziszewski quotes Henry de Bracton, the thirteenth-century English jurist who declared, Lex facit Regem—the law makes the king, not the king the law. The king is supreme within the system but not over the system. Budziszewski then notes the ways in which the anti-Federalist Brutus was prescient in seeing how, far from the courts being checked by the legislative and executive branches, the two latter branches would acquiesce and even collude in the protection and expansion of government power by letting the judiciary have the last word in saying what the Constitution means.
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