The Framers considered and rejected a policy-making role for the Scotus. Despite James Madison’s repeated efforts, the federal convention defeated his attempts to attach the Scotus to the Executive Branch through a Council of Revision. Rufus King of Massachusetts noted that judges must “expound the law as it should come before them, free from the bias of having participated in its formation.” As if lawmaking by courts didn’t pose enough dangers to free government, what of the extreme danger of dressing up feel-good social justice in the drag of rights?
The late Judge Robert Bork summed it up: “Judges who create new constitutional rights are judges of the policy of public measures and are biased by having participated in the policy’s formation.”1 The essence of republics is representative lawmaking; courts, by their nature, are set apart from direct popular will. Having lifetime appointments, lawmaking by such a body is the sure path to oligarchy.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The short history of the Ninth Amendment is found in the amendments that state ratifying conventions submitted with their letters of Constitutional ratification.2 None of them suggested a warrant for judges to fabricate rights. The language of the 9th itself contradicts that notion. Had the first Congress thought otherwise, it stands to reason it would have submitted something like, “The Scotus shall determine what rights, in addition to those enumerated here, are retained by the people.”3
In recent decades, theories grew from academe and law schools that elected legislators, governors, presidents and the sovereign people are unqualified to decide the great issues that confront the nation. Therefore, it is up to enlightened jurists to take their place. But the Framers bestowed a limited federal government in which Scotus played no part in deciding the great issues. If Americans are divided, as they often are, it is logical and good that our laws reflect their unease. Judge Bork explained it this way, “The often untidy responses of the elected branches possess virtues and benefits that the “principled” reactions of courts do not. Our popular institutions, the legislative and executive branches, are structured to provide safety, to achieve compromise when they are divided, to slow change and dilute absolutisms.”4
Having denied the people over time, through their states, the power to declare natural and societal rights, and fabricating rights which they will naturally defend at all costs, Scotus endangers the nation through its absolutism. Its decisions apply coast to coast, affect everyone, and are immune from popular repeal.
Absolutism. Anti-Federalists feared the decline of the states, the dominance of a central government, and subsequent nationwide uniformity in the law. Empires of great territorial extent, such as the Russian, Chinese, and Ottoman Empires were contemporary examples of the problem. Unrestricted, centralized lawmaking across vast areas can’t account for local customs and traditions. As such, the tensions and resentments fostered by distant, absolute rulers necessitate standing armies to enforce, through certain violence, the will of the Tsar, Emperor, or Caliphs.
More from Judge Bork: “Our freedoms do not ultimately depend upon the pronouncements of nine judges sitting in a row. They depend upon their acceptance by the American people,” and a major factor is the process by which these realized rights come about.5 A Scotus didn’t abruptly free the slaves. Nor did it make them citizens, nor extend to them the political right to vote. Almost sixty years later, Scotus did not grant the franchise to women. Scotus did not suddenly bomb society in the form of abstract, elitist decisions. Civil society, through the Article V process, reasoned the extensions of these privileges and immunities to blacks and women. While few dispute any of the twenty-seven amendments to the Constitution, conflict over various Scotus-derived rights are still the focus of editorials, protests and court challenges.
What was to prevent the natural absolutism so typical of extensive empires as America spread across a continent?
America’s federal structure minimized the danger in which a senate of the states enforced the parchment barriers to judicial aggrandizement prohibited by and reserved to the people in the 9th Amendment and the people and states in the 10th Amendment.
In 1789 the 9th Amendment guaranteed the rights of the people already specified in their state constitutions. The new government was not to deny or disparage them. Nothing in Natural Law nor any clause in the Constitution prohibited the enumeration by the people in their republics of additional rights. To the contrary, the 9th and 10th Amendments protected the people and states from nationalization of the law.6
Beginning with the stated rights to life, liberty, the pursuit of happiness and government as the means to secure these rights, our Framers extended the Lockean ideas of the Founders in which the sovereign people loaned certain powers for the purpose of safety in a life of liberty. To further secure liberty, the first Congress suggested the enumeration of additional rights, ten of which the sovereign people ratified through their states.
Yet, thanks to a horrid stew of conflicting Scotus decisions, our clean and readily understood Bill of Rights has been corrupted into a confusing, stinking pile of penumbras, emanations, right to privacy in bedrooms, confidentiality w/doctors (which Obamacare overturned), fundamental rights (of which life is not fundamental), compelling interests, liberty interests, procedural due process, substantive due process, and reference to foreign constitutions. These are all unnecessary self-inflicted wounds that harm the nation’s respect for the institution that is the best situated to protect our Natural, Civil, and Political rights.
Rather than accept the people as the fount of their rights, and their state constitutions as the means to express them, our absolutist Scotus slowly invalidates Congressional statutes, State laws, and State constitutional amendments. It always claims that this is what the US Constitution requires. Left unchecked, the Scotus will soon rule the nation.7 In recent years, lower district courts joined the farce of illegitimate judging when they prevent the President from rescinding the executive orders of his predecessor.
Our experience since the 17th Amendment neutered the Senate, and with it much of Congress, proves that toothless words on paper and a Bills of Rights do not secure free-government. The solution is to restore the Framers’ separation of powers and kick the runaway Scotus to the curb.
1. Bork, R. H. (1991). The Tempting ofAmerica – The Political Seduction of the Law. New York: The Free Press. 154.
3. Bork, 183.
4. Ibid, 352.
5. Ibid, 353.
6. Ibid, 184-185.
7. Ibid, 352.