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Curbing "Raw Judicial Power"

By Thomas A. Glessner, J.D.
March 8, 2007

The Presidential sweepstakes for 2008 is underway and the candidates of both parties are scrambling to get the inside track in the minds of the voters. The presidential hopefuls are intensely discussing issues of importance to the future of this nation but, to date, no candidate has clearly spelled out a specific position regarding the appointment of federal judges.

There is no issue more crucial to the future of this country than the issue of who will be appointed to fill vacancies in the federal judiciary. Our nation is a constitutional republic governed by elected representatives. When such representatives pass laws that are not supported by the public at large we have the ability to change such laws through the political process. Indeed, when a legislator acts irresponsible in the execution of his public duties he is subject to recall or defeat at the polls when he runs for reelection. Thus, the public (at least theoretically) has the constitutional ability to reverse bad decisions from our elected officials by engaging in the political process. Such engagement gives "we the people" control over the direction of the nation.

What controls does the public have, however, to check a federal judiciary composed of judges appointed for life who do not face accountability from the public through the electoral process? Indeed, federal courts have over the last few decades shown increasing interference into the lives of ordinary citizens. In regards to this former federal judge Robert Bork states:

Courts have all but banished religion and religious symbolism from our public life, created a wholly spurious right to abortion, made discipline difficult to impossible in public schools, required discrimination by judges race in public schools, ordered violent felons back on the streets because of what perceive as overcrowding in prisons, taken over the hiring and promotion of police and fire departments, required drastic changes in the composition of state legislatures, and transformed the First Amendment from a protector of ideas to a protector of self-gratification, so that obscenity and pornography are rife in our culture. Our courts will continue along these lines indefinitely unless we devise a counter. (1)

In devising our constitutional system the founding fathers ingeniously set up a system of checks and balances to insure that none of the three branches of the federal government — the executive, the legislative and the judicial — would be more powerful than the other two. In addition, the constitution clearly places limits upon the power of the federal government to encroach upon the powers granted to each individual state.

In regards to the power of the federal judiciary it was made very clear by founding father Alexander Hamilton in the Federalist Papers that the judiciary was to be the weakest branch of the federal government. (2) Yet, historically the federal judiciary has usurped for itself increasing power and authority without specific authorization in the Constitution. When the courts do this they in fact become a super legislature overriding the will of the people as reflected in the work of their elected representatives.

How did such an expansion of federal judicial power happen? Beginning in the early 1900s the Supreme Court began to expand the meaning of "liberty" under the 14th Amendment. This Amendment states that no state shall deny to any person liberty without due process of law. Traditionally, this clause was understood to mean that one could not be incarcerated without receiving traditional legal due process rights such as a trial, the right to confront witnesses, freedom from self-incrimination, etc. However, under this expansive interpretation of the liberty clause the Court began to rule that the personal liberty protected under the 14th Amendment meant other things besides freedom from incarceration. Such constitutionally protected liberty also protected, according to the Court, the freedom to contract, the freedom to direct the education of one's child, the freedom to procreate and the freedom to travel.

In a major precedent in the 1960s the Supreme Court further expanded this new understanding of constitutional liberty stating that it provides a right to privacy that allows the purchase of contraceptives for married people. Shortly thereafter the Court found that this constitutional liberty also belonged to unmarried people as well.

In 1973 Court again expanded the meaning of constitutionally protected liberty under the 14th Amendment. In the landmark case of Roe v. Wade the Court found the right to privacy under the liberty clause is broad enough to encompass a woman's decision whether or not to terminate a pregnancy by abortion. In making this ruling the Court over ruled the laws of all fifty states that made the commission of an abortion a felonious act.

In ruling that abortion is a constitutional right, as opposed to a criminal act, the Court went far beyond simply expanding the meaning of liberty under the 14th Amendment. The state of Texas, the defendant in the case, argued that abortion was not constitutionally protected liberty because it took the life of a "person." The full text of the 14th Amendment reads: "No state shall deny to any person, life, liberty or property without due process of law." Hence, Texas argued that no liberty exists to take the life of a person for such an act violates the protection of life under the Amendment.

The Supreme Court agreed with this argument of Texas and admitted that if, indeed, an unborn child is a "person" under the 14th Amendment then abortion could not be allowed because it took the life of a "person" without due process of law. This, however, is where the Court made a radical departure from the traditional understanding of the Constitution and the protections it gives to human beings. The Court simply stated that the unborn child is not considered a "person" under this Amendment and thus, abortion is a protected constitutional liberty. The issue of whether or not the unborn is a human being was irrelevant to the Court because it erroneously and foolishly ignored scientific facts and stated that nobody could know when human life begins. Regardless, of the humanity of the unborn the Court said that the unborn cannot be considered persons and thus, are not protected under the 14th Amendment. Hence, the era of abortion on demand was ushered in.

Numerous legal scholars have severely criticized the Court's ruling in Roe and many of these scholars are personally supportive of abortion. However, the Court in this decision decided to make public policy and constitutionalize an act that was a felony in all fifty states. Justice Byron White stated in his dissent that this decision was an act of "raw judicial power."

Indeed, such 'raw judicial power ' has divided the American public in a manner not seen since the days of slavery. The Constitution does not mention abortion or a right to privacy. Yet, the Court decided to impose upon the nation a policy of abortion on demand protected by the Constitution by finding such a right. The results of this decision have been tragic — 46 million abortions, 1.3 million abortions a year, 4,000 abortions per day and one abortion every twenty seconds.

Raw judicial power from the federal judiciary and the Supreme Court is power that imposes public policy on the nation and imbeds it in the Constitution regardless of whether or not such a policy is specifically mentioned in this fundamental legal document. When such a decision is rendered, as it was in Roe, the only clear way to overturn it is through the constitutional amendment process that requires two-thirds (2/3) of Congress passing the amendment and three-fourths (3/4) of the states approving it. Practically speaking the passage of any amendment that would end abortion and reverse Roe is politically impossible.

Without a constitutional amendment the only practical way of reversing Roe and other decisions of its kind is to have the Supreme Court reverse this decision and begin to render rulings consistent with the text of the Constitution. This means that the justices on the Court must impose upon themselves in judicial restraint. They must not rule in accordance with their own political preferences or biases, but rather must adhere to the intent of the authors of the Constitution. Without such a prevailing philosophy on the Supreme Court and in the federal judiciary we will continue to suffer from rulings handed down by federal judges who believe that they are wiser than the public at large on issues of morality and freedom.

President Bush has had a consistent and impressive track record in the appointment of federal judges. On the Supreme Court he has placed two excellent jurists — Chief Justice John Roberts and Justice Samuel Alito — who clearly believe in judicial restraint and not 'raw judicial power." However, more justices of this kind are needed if our nation is going to stem the tide of judicial encroachment on our liberties and notions of traditional morality.

The upcoming Presidential race will feature a discussion of major issues of concern to our nation. No subject is more important than the topic of judicial appointments by the next President of the United States. Federal judges serve on the bench for life. Their influence on the course of this nation will long outlive the Presidents who appointed them. The next President will make crucial appointments to the judiciary that will once and for all settle in the public arena moral issues like abortion and gay marriage.

The public and general electorate must clearly understand what is at stake in the next election in regards to the make-up of the federal judiciary. Curbing "raw judicial power" through the appointment of federal judges who believe in judicial restraint is an issue that must be foremost in the minds of the voters. Lives are at stake and perhaps the future of our nation, as a true constitutional republic, hangs in the balance.

Copyright © 2007 by Thomas A. Glessner. All rights reserved.

(1) Robert Bork, The Conservative Case For Amending the Constitution, THE WEEKLY STANDARD, March 3, 1997, at pg 21.
(2) Alexander Hamilton, The Federalist Papers, No. 76. Hamilton states: "This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two."

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