What decides legality—the Constitution, or a judge’s ruling? Are we required to obey illegal judicial rulings?
When the Constitution was new, there was no doubt; the oath of office that was and is taken by every elected official and appointed judge pledges allegiance to the Constitution. However, while we officially claim the Rule of Law as our guide, we too often set public policy by court decisions, some of which are illegal.
Federal courts began judicial creep in 1803 when the Supreme Court “found” for itself the right of judicial review—their authority to decide if a law was constitutional. Jefferson termed it “a very dangerous doctrine” and warned this would make the Constitution moldable wax in the hands of the courts. He was right. One of the errors of federal courts has been their century-long confiscation of state power. Constitutionally, most of our laws should arise from the state, as state laws prevail in all but 26 carefully limited areas.
Judicial larceny against state authority has a long history. As a sampling, federal judges overruled California’s limitation of services to illegal immigrants in 1995 and Arizona’s law making English its official language in 1997. In 2003, federal judge Myron Thompson ruled that Alabama Supreme Court Chief Justice Roy Moore was illegal in posting the Ten Commandments at the Alabama Judicial Building in Montgomery. Moore’s action was legal by both state and federal constitutions, but the monument was removed and Moore was fired. His offense, says Thompson, was his “intent of establishing a permanent recognition of the sovereignty of God”; his claim that God, not man, was the boss.
It does not violate the Constitution for government officials or anyone else to acknowledge God publicly. This harms, compels and interferes with no one; it violates only the edicts of activist judges. Past US presidents have openly acknowledged God, beginning with George Washington’s 1789 National Day of Thanksgiving Declaration. Abraham Lincoln in his first Inaugural Address referred to “…a firm reliance on Him, who has never yet forsaken this favored land…” Ronald Reagan declared “It’s not enough to depend on our own courage and goodness. We must also seek help from God”.
Another problem with the courts is that they have embraced making law, rather than just interpreting it. This judicial arrogance spiraled in the mid-20th century. Today the high court resembles a dog chasing its tail. Court decisions come from popular opinion; these decisions shape the culture, and the culture determines the next judicial rulings. Round and round they go. Forget the Constitution, the Founders and centuries of public process. When judges rewrite our national standard, our freedom is jeopardized by any black-robed judge willing to prostitute himself before the law. We in Utah know, due to Judge Shelby’s ruling on Utah’s Constitutional Amendment Three. That case is headed to the Supreme Court. If the final ruling strikes down Utah’s law, we will, again, be victims of judges who make law rather than interpret and uphold it.
Phyllis Schlafly, of Eagle Forum, says every problem in the country today—pornography, Godless education, declining morals, disregard for the Rule of Law, ect.—is the result of judges ruling illegally. Activist organizations like the American Civil Liberties Union (ACLU) say their rights are violated when walking past religious displays. They sue and then collect tax dollars to prosecute the case (a half million dollars for Alabama’s 10 Commandments case, alone). That’s a great business model, but lousy ethics. In the process, our religious rights disapapear.
Is our allegiance to a court ruling, or to our founding document? Most think any ruling by the Supreme Court is irrevocable. Because we believe that, we obey, even though the ruling makes law rather than interpreting it. There is a move underway for a constitutional amendment to limit the courts. That would be good if properly structured, but we needn’t wait. Constitutional remedies are available now. State leaders can “just say no”; we can insist on legality. Congress has the authority to set specific issues outside the reach of the courts, defund illegal judgments, and discipline through impeachment. It should take all three actions.
America is a democratic republic, not an oligarchy ruled by black-robed, politically charged judges. Our Rule of Law is cemented to the Constitution. While most judges are good, honorable public servants, it’s time to rein in the rogue judges who hold our laws hostage. We can do so with style and grace; we should do so with firmness and finality; but most of all, we must actually do it. We had best act before a judge-gone-rogue rules liberty unconstitutional.