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 Brown Reconsidered 

January 13, 2004

Judicial review was originally proposed (most notably in Federalist No. 78) as a method of making sure legislatures didn’t pass unconstitutional laws. Today it has become a method of changing the very meaning of constitutions under the guise of interpreting them.

The problem was highlighted this past November, when the supreme court of Massachusetts handed down the sensational ruling that the state’s constitution required that same-sex “marriage” be recognized in law. The court didn’t even bother citing any specific passage of the constitution that might be construed to mean this; obviously it couldn’t find one. It just decided to do the “progressive” thing, regardless of the text.

The court knew, of course, that this controversial fiat would find support in the unbiased liberal media, where the trendy is always equated with constitutional “rights,” and where the universal understanding of words is subject to sudden change. Throughout human history, terms like marriage, marital, conjugal, connubial, and spousal could only refer to unions of the opposite — or, more precisely, complementary — sexes.

As for judicial review, it was for many years hardly used at all. It existed more in principle and in theory than in practice, even after Chief Justice John Marshall asserted it as a power of the courts. The first notable instance of it was the 1857 Dred Scott decision, which Abraham Lincoln denounced as a threat to popular self-government.

After the Civil War the U.S. Supreme Court exercised judicial review with more frequency to strike down state and Federal laws it deemed contrary to the U.S. Constitution. During Franklin Roosevelt’s presidency, the Court declared much New Deal legislation unconstitutional, and the enraged president tried to “pack” the Court with new justices; even his own party was horrified, and the effort failed. Still, Roosevelt finally managed to shape the Court to his will by appointing party hacks whenever vacancies occurred. The Court, as a result, became more liberal and “activist.”

[Breaker quote: Should Earl Warren have been impeached?]But the great change began to occur in 1954, when the Court, in Brown v. Board of Education, ruled that racial segregation in state schools violated the Fourteenth Amendment. Though this was a very questionable decision on constitutional grounds, liberals applauded the result, and segregation was so disreputable outside the South that few outside Dixie really objected.

With this triumph the Supreme Court — led by Chief Justice Earl Warren, a Republican appointee — vaulted to a new and powerful role in American life. Liberals looked with favor on the Court’s “broad” construction of the Constitution, not only on racial issues but on many others: censorship, public school prayer, legislative districting. They soon realized that an aggressive judiciary could be a shortcut to achieving their agenda without the bother of getting it past voters and legislatures.

Thanks to the Federal judiciary, liberals could win victories even when they lost elections! The power of the courts was enormously increased. Some conservatives called for Warren’s impeachment, but the media treated this as a joke, and most of the country acquiesced to the Supreme Court’s new muscle, even though it meant a degree of arbitrary power that alarmed even some thoughtful liberals. To a great extent, “government by judiciary” replaced self-government.

And so it has been ever since, most notably in Roe v. Wade, when the Court suddenly “discovered” that the trendy cause of legal abortion was guaranteed by the Constitution and struck down the abortion laws of all 50 states. Again, the Court’s reasoning was feeble; but again, liberals liked the results and, as usual, the unbiased liberal media provided supportive propaganda.

It all started with Brown — or rather, with a willingness to tolerate dubious constitutional reasoning for the sake of getting desired results. Since 1954, judicial review has come to mean liberal tyranny, as liberal courts have imposed their arbitrary will. Naturally, liberals love this arrangement, and as they lose elections they fight tooth and nail to retain their judicial stronghold. After all, judges are appointed for life and don’t have to face the voters, no matter what they do.

All this could have been avoided long ago if Earl Warren and his colleagues had been impeached for usurping power. The absurd ruling of the Massachusetts court is just the latest bitter fruit of the total perversion of judicial review. And only impeachment will teach the rogue judiciary that its place is below, not above, state and Federal constitutions.

Joseph Sobran

Copyright © 2004 by the Griffin Internet Syndicate,
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