By Logan Blakeslee
It is no accident that in the separation of federal powers, as described by the Constitution, there is actually very little authority bestowed to the U.S. Supreme Court. Article III and its provisions offer an outline for how our nation’s judicial branch should function, and astute readers will quickly notice that the Constitution does not permit the Supreme Court to enact or enforce the law, but primarily to settle “controversies”—or in other words, legal disputes. The court’s capacity to interpret the law (sometimes very loosely) is a byproduct of the famous 1803 case Marbury v. Madison and has been a longstanding feature of the judiciary ever since.
Like any true Jeffersonian patriot, I am not entirely fond of the expansion of judicial review and its tendency to formulate “rights” out of thin air. For example, the Constitution is utterly devoid of any mention of abortion, same-sex marriage, or affirmative action, yet adherents to the “living document” theory claim that these policies are protected under the Bill of Rights. This philosophy, which serves to extrapolate liberal and progressive objectives from the plain text of the Constitution, is risky. The threat it poses is not rooted in the objectives themselves, but rather how it destroys the balance of power between the branches of the U.S. government.
Herein lies the problem: the justices of the Supreme Court are unelected and they serve for life. They are not accountable to the popular will whatsoever. If these attributes were applied to the president or legislators, the country would be a de facto autocracy. The suggestion that Supreme Court judges should take a more active role in lawmaking greatly harms the democratic principles of this nation. It robs Congress and state legislatures of their responsibility to create laws that suit the needs of their people. Additionally, it’s hypocritical to laud the court when it expands rights prioritized by liberals, but to lambast it for protecting those already enshrined in the Constitution, such as the First, Second, and Tenth Amendments.
Speaking of hypocrisy, those who believe that unelected judges should “legislate from the bench” are generally the same types who would abolish the Electoral College, which they deem to be “undemocratic” or “unfair.” At least voters can choose their electors; only the president can choose the members of the Supreme Court!
Beyond that, the notion that laws are up to individual interpretation ruins the objectivity of the legal system. How can anyone agree on what the law says if it’s always evolving (coincidentally in a direction that mostly favors the Democratic Party)? Laws in reality are the solid bedrock of civil society, something that everyone should understand equally in order to establish order. The historical precedent for ignoring textual objectivity can be readily found in the Protestant Reformation, otherwise known as the moment when Christendom began to unravel.
Martin Luther, that German scoundrel, introduced the idea that the Bible should be open to individual interpretation. This culminated in his removal of scriptural passages and books, and later the Protestant movement introduced such wacky ideas as predestination, Sola Fide, Anglicanism, prosperity gospel, and other nonsensical things. There are hundreds of Protestant denominations and countless heretical spin-offs (which may or may not be located in Utah). My point is that subverting an institution’s authority leads to social fracturing and division. Secularism in the West can be attributed more to Christian infighting than so-called rationalism or tolerance.
At one point in American history, the states which compose the American South came to the conclusion that the Constitution allowed them to secede over the issue of slavery. Fortunately—because the truth is unchanging—it did not. There is no legal mechanism for states to ever leave the Union. “Living document” theorists, had they been alive in the mid-19th century, would likely argue that the zeitgeist of the era justified secession, or that the opinions of the Founding Fathers no longer mattered in the grand scheme of things.
Moving back to the justice system, the philosophy which seeks to interpret the Constitution as the Founding Fathers would have is commonly known as Originalism. Its champion was the Honorable Antonin Scalia, a Reagan appointee to the U.S. Supreme Court who passed away in 2016. Scalia was, without a doubt, the most consistent conservative legal scholar in American history. He thoroughly deconstructed liberal attempts at gun control with facts and logic (see the 2005 case “District of Columbia v. Heller”), and eloquently explained why the question of same-sex marriage should have been left to the respective states in his dissent from the landmark 2015 case Obergefell v. Hodges.
The key argument here is that one can be 100% pro-choice or supportive of LGBT rights and still assert Congress’ rightful authority to create laws on these subjects, as well as countless others. Suggesting that judicial activism is necessary is therefore tantamount to saying that the democratic process has failed on all levels. It politicizes the judiciary and places an undue burden on judges that the Constitution never intended, which in turn affects the credibility of the entire legal system.
Our nation’s governing document is not sacred scripture. Its provisions were not handed down by Providence and stored in a golden ark to be paraded around Washington D.C. The simple truth is that our Constitution was written by flawed men who nevertheless possessed incredible wisdom and foresight. They included the option to pass amendments at times when lawmaking-as-usual would not suffice. Amendments are not subject to the whims of nine unelected justices and cannot be overturned except through another amendment.
I suggest that instead of complaining about the latest Supreme Court rulings, we should all go out and vote like proud American citizens.