By Garry J. Moes

In 1865, Southern congressman and political thinker Alexander Hamilton Stephens wrote, "How society is to be constituted so that all can attain justice; that is the vexed question." The question is becoming more vexing every day as American society increasingly falls under the tyrannical rule of a judicial oligarchy.

How this society is to be constituted was the seminal question at America's inception as its founding document, the Declaration of Independence, was written. It was supposed to be settled in law when America's groundbreaking Constitution was written. It is no coincidence that the latter document (and its counterparts in the several federated states) is called a "constitution."

The very purpose of a constitution is to FIX — against the whims of men and movements and the winds of unproven change in a fallen world — the fundamental nature and purposes of a society. It is supposed to be an anchor in the storm and a mooring in the time of tranquillity. In America's case, our national character was established in our founding documents as a federal, republican society based on the rule of law. Our system of laws was to be one facilitating a liberty that is self-governed under the authority of the revealed eternal will of a Divine Creator who has sovereignly chosen to endow His creatures with certain inalienable rights. To create and enforce that system of laws, a carefully devised political system was established, laced with checks and balances to prevent the re-establishment of tyranny — indeed, any concentration of power in the hands of a centralized force or in the hands of a democratic majority that might one day lose its moorings in the moral designs of its Creator. Eighteen-century France, in its pursuit of liberty, equality and fraternity, failed to devise similar restraints, and its radical Revolution, unlike America's conservative innovation, immediately devolved into mob rule and a reign of terror.

If there was any weak point in the American system of checks and balances, it seems to have been, as time is now proving, in the constitution of our national judiciary. While it was intended that this judiciary be independent to a large extent — to protect the rule of law against the designs of finite men, that notion was seen to be valid only insofar as this judiciary would be populated by men of true moral wisdom and committment to the carefully devised constitution of their society. Instead, the men and women who now hold the public trust as guardians of the rule of law have elevated themselves to be arbiters and creators of the law, not its interpreters, following their own notions of what is preferable for a new globalist humanity. To overcome the constraints of the real Constitution, these would-be philosopher-kings have invented the concept that they are the intepreters of a "living" or "dynamic" Constitution. But an ever-changing constitution is no constitution at all — it "constitutes" nothing. Rather, it establishes the rule of men, not the rule of law.

For more than a century, beginning perhaps with jurist Oliver Wendell Holmes Jr. and "educator" John Dewey, a "living" constitution has been the ever-increasing, overarching, overriding necessity for judges, social engineers and unruly citizens who despise the true constitution of our society — those who would rather have a society of utopian, collectivist/socialist, amoral/immoral, pagan, secular, libertine, anarchist, humanist, sentimental, evolutionist, materialist, multicultural, hedonist, pacifist, globalist, modernist, post-modernist, minimalist, deconstructionist ideals and principles; in short, everything anathema to our intended national character, as envisioned by those who came to this virgin land to build and enjoy God's kingdom in this world.

The invention of imagined clauses and rights and tortured intrepretations of our written and established Constitution has become the critical tool of today's social changers — those elitist revolutionaries who haven't yet been able to fully overcome the residuals of devotion to the founding political, social and moral principles still lingering in our society and body politic. The original system was so powerful it has yet to be completely defeated on its own merits and by its own rules; it can only be stealthily subverted at its weakest point if its enemies are to prevail. And in recent times, they have been disturbingly successful — so successful, in fact, that we are today on the very verge of losing the glorious system which as protected our lives, liberties, property and happiness so wonderfully these many years.

For this reason, the fight over the character of our judiciary must become the highest domestic priority of those who love moral self-government and liberty in this land. If international terrorism is the greatest external threat to our existence, the current assault on Americanism by and through the judiciary is the greatest internal threat. The intensity of our war on terror must be matched in every respect in the needed war on judicial tyranny, with every moral and political effort directed toward its defeat. We have only our nation, our safety, our religion, our future and the future of freedom in the world to lose.

The following is adapted and reprinted from The Federalist Patriot (March 4, 2005):

Judicial Supremacists and the Despotic Branch

The U.S. Constitution continues to suffer serious setbacks.... The future of liberty and the rule of law continues to suffer likewise.

It's bad enough that Democrat obstructionists are denying President George Bush's federal-bench nominees their constitutionally prescribed up-or-down vote by the full Senate. In a fine example of why we need those nominees on the bench, Leftists on the Supreme Court are, again, "interpreting" the so-called "living Constitution" as a method of altering that venerable document by judicial diktat.

Worse yet, these Left-judiciary Supremacists — Justice Anthony Kennedy and Court Jesters Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens — cited "national consensus" as a factor in Roper v. Simmons ruling [March 1, 2005]. In other words, they disregarded the Constitution's prescription for federalism and republican government in the name of unmitigated democracy. Which is to say, while riding roughshod over the Ninth and Tenth Amendments as they overturned the laws of 19 states, the Supremes blithely pushed the nation one step closer toward what everyone since Plato has described as governance in its most degenerative form.

Writing for the majority, Kennedy claimed that Americans had reached a "national consensus" against capital punishment for "children," citing as evidence that only 20 states allow a 17-year-old to be sentenced to death. Of course, Kennedy's logic is utterly at odds with decisions such as Roe v. Wade. In that 1973 decision, the Supremes serendipitously discovered a right to privacy that allowed for the aborting of children, despite the fact that all 50 states had laws at the time either prohibiting or tightly regulating abortion. So we must ask you, Justice Kennedy — what's all this rubbish about a "national consensus?"

You recall, of course, that in a recent case, the Supremacists discovered a clause in the Constitution specifically stating that a 14-year-old is mature enough to abort the life of her child without parental consent. Now, in Roper v. Simmons, they've found a contradictory clause, which avers that a 17-year-old is not mature enough to be held accountable for capital murder.

Adding grievous insult to this "national consensus" injury, Kennedy cited "international consensus" noting "the overwhelming weight of international opinion" as a factor in the Court's decision. Kennedy cited the UN Convention on the Rights of the Child when writing, "The United States is the only country in the world that continues to give official sanction to the juvenile death penalty." Here, his message was all too clear: The High Court is building a tradition of referring "to the laws of other countries and to international authorities as instructive for its interpretation" of the U.S. Constitution.

Sadly, such citing of international standards and conventions seems to be the latest fashion among the Supremacists.

In 2003, Justices Ginsburg and Breyer upheld an affirmative-action policy at the University of Michigan, noting an international treaty endorsing race-based advancement for minorities. Stevens, for his part, cited international law in overturning another capital case: "Within the world community, the...death penalty...is overwhelmingly disapproved." Furthermore, in Lawrence v. Texas, Kennedy wrote that the European Court of Human Rights has affirmed the "rights of homosexual adults to engage in intimate, consensual conduct."

Justice Sandra Day O'Connor said recently, "I suspect that over time we will rely increasingly...on international and foreign courts in examining domestic issues." Justice Breyer added, "We see all the time, Justice O'Connor and I, and the others, how the world really -- it's trite but it's true -- is growing together. The challenge [will be] whether our Constitution...fits into the governing documents of other nations."

"How our Constitution fits?"

Justice Antonin Scalia, a dependable constitutional constructionist, protested on behalf of the dissenters that capital punishment should, rightly in accordance with constitutional federalism, be determined by individual states. "Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent. ... To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry." Just so.

Perhaps Justice Scalia recalls this admonition from Founder George Washington: "Against the insidious wiles of foreign influence...the jealousy of a free people ought to be constantly awake; since history and experience prove that foreign influence is one of the most baneful foes of Republican Government."

Clearly, international consensus has no standing whatsoever in the constitutional rule of law in the United States. For that matter, the only relevant "national consensus" is that prescribed by our Constitution for its amendment -- a consensus of the people as represented by two-thirds of the legislatures of the several states. But such facts are lost on Left-judicial activists who are content to legislate from the bench. Just consider this recent comment from Justice Breyer: "The extent to which the Constitution is flexible is a function of what provisions you're talking about." In other words, if he likes it the way it was written, it stands as is. If not, he interprets it, in the words of the august Sen. Sam Ervin, "to mean what it would have said if he, instead of the Founding Fathers, had written it."

Which brings us to the Senate Judiciary Democrats' filibuster of President Bush's nominees. Plainly, the Constitution intended that Executive Branch appointments be subject to confirmation by the full Senate, and that such consideration not be obstructed by a handful of wild-eyed Leftists such as Ted Kennedy.

Why are Senate Democrats so insistent on blocking the President's nominations? Because they know the real locus of central government power resides on the federal bench.

Many of President Bush's nominees are constitutional constructionists, as intended by our Founders -- those who issue rulings based on the letter of constitutional law rather than interpret it according to their constituent agenda. Yet Kennedy and his ilk are bent on denying consideration of these fine constructionist judges, for they know that the President will likely advance the names of two such nominees to the Supreme Court in this term.

As for the constitutionality of their filibuster, even liberal Georgetown law professor Susan Low Bloch argues that supermajority requirements (to overcome the filibuster) for nominations "upset the carefully crafted rules concerning appointment of both executive officials and judges and...unilaterally limit the power the Constitution gives to the President in the appointments process. This [allows] the Senate to aggrandize its own role and would unconstitutionally distort the balance of powers established by the Constitution." Clearly, then, filibuster as a method for obstruction of Senate judicial confirmations circumvents the Constitution in both letter and spirit.

That has prompted Senate Majority Leader Bill Frist to consider what he calls the "nuclear option" — change the Senate rules on such committee obstructions in order to get the President's nominees before the full Senate for an up or down vote — as constitutionally mandated. In fact, it is the Democrats who have exercised the "nuclear option" by circumventing the Constitution!

So what does the Constitution actually prescribe with regard to federalism and the conduct of federal judges, including the Supremes?

The Federalist Papers constitute the definitive explication of our national Constitution. In Federalist No. 32 Alexander Hamilton writes, "[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State." On the subject of federalism, he wrote in No. 81 "...the plan of the [Constitutional] convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States."

In Federalist No. 45, the author of our Constitution, James Madison, notes: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State."

Madison's outline notwithstanding, the scope of activities of the legislative and judicial branches today hardly resemble the limits of our Constitution — yet nothing in its amendments allows that scope.

Concerned for the potential tyranny of the judiciary, Thomas Jefferson warned: "The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. ... The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. ... It has long, however, been my opinion, and I have never shrunk from its expression...that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

Jefferson continued: "At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance."

Some 200 years later, they are as dangerous as ever. Notes Justice Scalia, "As long as judges tinker with the Constitution to 'do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically."

The time is long overdue for Congress to make amends for failing to check the unbalanced and growing powers being arrogated by these judicial tyrants -- and altering the Senate rules is a good start. But our current circumstances are worse than nearly all analysts are admitting. Not only should these moderate-conservative Bush judicial nominees be seated, but those judges who are in violation of their oaths of office should be unseated by impeachment. Alas, as Jefferson noted long ago, "We have...[required] a vote of two-thirds in one of the Houses for removing a judge; a vote so impossible where any defense is made before men of ordinary prejudices and passions, that our judges are effectually independent of the nation. ... For experience has already shown that the impeachment it has provided is not even a scare-crow."

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