God, Save the Supreme Court!

by Robert J. Romano

July 27th, 2005

Justice is the application of the natural law, and the protection of natural rights, including life, liberty, property, and the pursuit of happiness.  Indeed, our nation was not founded to provide for the preservation of sovereign power as an end in itself.  It was founded precisely to protect individual rights because that is the right thing to do.  Guaranteeing liberty under law, our positive, human laws, is necessary in order to limit the state's power, because if we do not, there is a certainty of arbitrary governance, merely based on a short reading of mankind's tragic history.  Power without limit is every patriot's truest enemy, and any form of government without limit is worthy of alteration, for without proper limits on government, our rights are violated.  Never is the solution to alter our rights, or our interpretation of liberty, in order to mete out fairness.  Justice, not fairness, is the ultimate arbiter, with truth as its first principle.  We need not read the words of the Declaration of Independence and change their meaning in order to suit contemporary community standards.  It is quite clear what the Declaration meant, that there was a tyrannical monarchy for which it was right and wise to order abolished, that America had become a distinct nation, and that no foreign control would ever again suppress those individual rights of the people.  America was once a tyranny, but because of patriots, it is not, nor shall it ever become so again, so long as liberty-loving people prevail in today's struggles.

        Freedom's expansion in the modern world has been, in large part, a tragic story of oppression and war, in which courageous individuals have had to overcome powerful tyrants, and ultimately, it is a story of hope in which similarly courageous individuals have had to and still must vigorously defend their rights within free societies.  Just because the Revolution was won, and independence established, does not mean that the Founders' vigilance was any less, and did not mean that there were not new tragedies ahead as the struggle for equal liberty culminated in a Civil War, a permanent scar of American vigilance, and does not again mean that our determination shall be any less, whether it be in obliterating tyranny overseas, or stamping its flames out here at home.  Just because the Revolution was won, it does not mean that liberty applies under law any less today than it did when the Federal Constitution was ratified.  Liberty, of course, is indivisible, and even without the Constitution's protections, the Revolution would live on, and freedom's march would continue in history's due course.  For, it would be impossible to strip man of his nature, which is to live free, or die.  No arbitrary decree, no matter from how high, can overturn, alter, or abolish individual human liberty.  Our lives can be eliminated, our properties can be confiscated, our happiness denied, but not freedom.  Freedom shall endure, and as such, the Revolution shall never die.

        We are duty-bound as Americans to safeguard and provide for the defense of the Constitution, by all legal means necessary, in order for its intent, original meaning, and implications to be properly adhered to.  Ultimately, we the people may judge for ourselves the legitimacy of the government's decisions, laws, and the application of justice.  We can see for ourselves whether the government, or any of its branches, have become destructive, arbitrary, or tyrannical.  We know when it exceeds its authority, because limitless government is not a priority or principle which any reasonable person would ever adhere to or promote, and was not a priority or principle which compelled the Founders at Independence Hall to strike their quills to parchment.

        Laws are made, properly so, by the people's duly elected representatives.  They are enforced, properly so, by the President and the officers of the executive branch.  If either of these branches exceeds its powers, so defined in the Constitution, the judicial branch, properly so, applies the supreme law of the land.  But, what if the judicial branch exceeds its power? What then?

        It is more than a gross distortion of our Constitution for the Supreme Court to declare for itself the absolute authority to define liberty.  This is not a power granted by the Constitution.  Penumbras, indeed.  The right definition of liberty rests with our Creator, not men in robes, and I shall not pretend to know its full meaning.  However, I will propose that the power to define liberty under law most properly resides with the people's representatives.   Not to take away rights already established by the supreme law, but rather, merely the power to posit rights into our laws, consistent with all articles of the Constitution.  There have been Civil Rights acts, numerous in origin, predating the 20th century.  Let there be more.  And let there be no mistake where the legislative power, in this our democratic republic, resides.  Let our laws, and our rights, be well-defined, and if the people are not satisfied, they can elect representatives which better guarantees their rights under law.  The notion that rights are only contained in the Constitution, and that these are the only rights which may be protected, of course, is a gross misrepresentation of the original intent of the Constitution, and a dishonest reading of its Ninth Amendment.  In other words, to state that ultimately the Judicial branch has the power to enumerate rights is a certain recipe for a tyranny of few.  Furthermore, the idea that our rights may only be defined by meting out justice in our adversarial judicial system is a sure path to judicial supremacy, and restricts the authority of the people.  It guarantees not the rule of law, but the rule of lawyers.  One nation under decree.

        Who are these justices of one court to enumerate rights and powers not specifically mentioned in the Constitution without the people or their representatives' proper approval? Those powers not articulated are reserved to the States and the people, and those rights not enumerated are nevertheless retained under law. 

        Never is the consideration fairness.  Never is the answer to injustice the subversion and perversion of justice through the creation and promulgation of exceptions.  Justice is with no exception.  Never should we leave ourselves content for rights and powers to be judicially enumerated on a periodic basis for the sake of fairness, or for the public purpose to override the rights of property for that matter, or for the zone of privacy to be thought to excuse all acts contrary to the law, or for the power to regulate commerce becoming the power to regulate all.  We don't need gods.  If we need to enumerate new rights, let it be in Congress, where at least once every two years we the people may remove representatives that do a poor job.  If we need to enumerate new powers, let it be in the Constitution, that document whose purpose it is to limit government and guarantee the rule of law.  While I do not support the dissolution of the judicial power of constitutional adjudication, I do believe that said power must be limited in order for the people to have any say on what the law should be.

        I believe that as the United States Senate considers the nomination and exercises its authority to consent or not to the confirmation of Judge John Roberts, the whole of Congress must consider how the judicial power may be properly limited so that we do not receive unconstitutional outcomes out of what is supposed to be a constitutional process of judicial review.  Clearly, it is not enough to merely appoint justices to uphold and apply the Constitution.  If that were enough, all decisions would be just and in accordance with the law.  If it were enough, perhaps we wouldn't need laws at all.  We'd be angels.  But we are not angels.  And the Supreme Court is not God.  God, save the Supreme Court!

        Never should we accept wearing a blindfold when it comes to viewing our rights.  Never should we live in a society where only unelected individuals may tell us what our rights are.  That is precisely the type, if not the form, of government which the Founders ordered abolished.  I never want to hear, "Pay no attention to the men in robes behind the curtain... Liberty is indivisible." Yes, of course it is, and it may not be violated without recourse.  Natural rights may not be deprived without due process of law.  And legitimate governmental power may never become arbitrary.  A tyranny could rise.  And whenever one does, our perpetual vigilance must alter it, and if that fails, to abolish it and start over to try again by convening a constitutionally permitted convention for proposing amendments or with a new draft.  For, it is our right to do so, and whenever any branch of government exceeds it authority, it our duty to do so.  Anthems may fade, capitals may shift, generations will come and go, but liberty will never be abolished.  Our liberty is the right to apply justice in its absence, and this power of enumerating rights and powers properly rests with the legislative branch, not the judicial branch.  It is up to Congress to make all laws which shall be necessary and proper in carrying into execution the just powers of the government.  We vote for representatives, not kings, and not queens.  We live in a Republic, not a monarchy.  Ultimately, we have the power, and if our rights are not properly cared for, we should use it, one way or the other.  The Revolution continues, and freedom's march knows no bounds.