“Liberals attempt through Judicial Activism what they cannot win at the ballot box” – Rush Limbaugh
“A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.” – Justice Antonin Scalia
“The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it – certainly not to rewrite it.” – Ronald Reagan
What is Judicial Activism?
Elizabeth Slattery of the Heritage Foundation offers the following from her article, How to Spot Judicial Activism:
“A simple working definition is that judicial activism occurs when judges fail to apply the Constitution or laws impartially according to their original public meaning, regardless of the outcome, or do not follow binding precedent of a higher court and instead decide the case based on personal preference.
Judicial activism is therefore not in the eye of the beholder. In applying the law as it is written, judges may reach conclusions that are (or may be perceived to be) bad policy but are nonetheless correctly decided. Judges are charged not with deciding whether a law leads to good or bad results, but with whether it violates the Constitution and, if not, how it is properly construed and applied in a given case.
Judicial activism can take a number of different forms. These include importing foreign law to interpret the U.S. Constitution, elevating policy considerations above the requirements of law, discovering new “rights” not found in the text, and bending the text of the Constitution or a law to comport with the judge’s own sensibilities.”
Judge Robert Bork (a President Reagan Supreme Court Nominee) was even more forthright on the matter. He stated that “judges engage in activism when their decisions cannot plausibly be related to the constitution they claim to be enforcing.”
But he didn’t stop there. He went on to note why it happens and highlighted the inherent dangers in his powerful book Coercing Virtue. He summarized his thoughts in a 2003 speech to the American Enterprise Institute.
“That [judicial] imperialism is now characteristic of just about all Western nations. That fact suggests that the problem is not due simply to some unfortunate appointments to the Court. It is inherent in men and women given power without democratic accountability.
I will suggest four things about this phenomenon. First, it is one battleground, and perhaps the decisive one, in a transnational culture war involving a war which displays the same alignment of forces in all Western nations and in which judges everywhere play the same role.
Second, and most obvious, activism is a usurpation by judges of powers rightly belonging, in a democracy, to the political branches.
Third, everywhere judges are forcing their nations’ cultures to the left, breaking down traditional moral codes and the efforts of electorates to preserve those codes.
And, fourth, the internationalization of law, often improper in any event, may be a major force in the movement toward international government, which, as we are beginning to see in the European Union, is likely to be authoritarian, if not, ultimately, tyrannical.
The internationalization of law, particularly constitutional law, is further along than you may think…The problem is not merely anti-Americanism abroad; it is also the American intellectual class, which is largely hostile to American power, and uses alleged international law to attack the morality of its own government and society. International law thus becomes one more weapon in our domestic culture war…It is dismaying to see the United States Supreme Court beginning to take guidance from and to cite foreign constitutional decisions…We seem headed for a homogenized international common law of the Constitution.”
Judge Bork was warning of the ongoing battle for our national identity – our nation and our culture – through judicial control of law. He was warning of the erosion of our Constitution.
In The Globalism Threat – Socialism’s New World Order, I noted the crucial role that our Constitution – and the lesser laws – play in the protection of our nation:
The central tenet of Globalism is the concept of “global rule of law,” under which nation-states cede judicial authority to supranational courts.
Globalism promotes globally centralized control of laws, foreign policy and monetary policy. Unlike Capitalism, Globalism inherently blends rule of law with rule of man. Globalism comes into existence through the ownership of laws. And through the ownership of law, Globalism gains ownership of nations.
In order to maintain a national identity a nation must first maintain self-governance and full sovereignty. Globalism seeks to break national identity by subsuming national laws. Ultimately, preservation of national or sovereign law is the key to preventing Globalism. Which means our Constitution must not only be revered – it must be defended. For it is our Constitution that protects us – and our Republic.
It is, therefore, important to constantly remind ourselves why the United States is a Republic and not a Democracy:
A Democracy is Rule by the Majority – this is the singular defining feature. Stated another way it is Majority over Man. Stated even more directly it is a Dictatorship by the Majority.
A Republic is a form of government in which powers are vested in the people and are exercised through representatives chosen by the people. Republics are bound by charters, which limit the responsibilities and powers of the state.
The United States is a Republic with a Constitutionally Limited Government – powers are separated between three branches: Executive, Legislative and Judicial – whereby the people elect representatives who make decisions on their behalf. Crucially, people have – and maintain – natural rights. And people (and their rights) are protected by the Bill of Rights from the majority.
It is our willingness to live by our Republic’s charter – the U.S. Constitution – that allows us to maintain our freedom. A Democracy, by contrast, is only as free as the majority’s understanding – and application – of freedom.
“My thesis is uncomfortable, but I think it is undeniable: America today is only partially a republic and, beginning about 50 years ago, has steadily become less of one.” – Judge Robert Bork
Judge Bork was referring to the increasing influence of what he called the “Elite Modern Liberals” or “Olympians” – whom I call Globalists. He quotes Kenneth Minogue’s definition:
“We may define Olympianism as a vision of human betterment to be achieved on a global scale by forging the peoples of the world into a single community based on the universal enjoyment of appropriate human rights. Olympianism is the characteristic belief system of today’s secularist, and it has itself many of the features of a religion. Its characteristic mode of missionary activity is journalism and the media.
Olympianism is the project of an intellectual elite that believes that it enjoys superior enlightenment and that its business is to spread this benefit to those living on the lower slopes of human achievement. . . . Olympianism has burrowed like a parasite into the most powerful institution of the emerging knowledge economy–the universities.”
Judge Bork continues in his own words:
“Olympianism displays both radical individualism and radical egalitarianism–usually thought to be antagonistic but both contributing to the erosion of traditional hierarchies and values.
Olympians are verbalists, distinguished less by their intellectual prowess, which is often slim, than by the uniformity of their anti-bourgeois attitudes, utopian musings, and authoritarian temper. When what they regard as virtue is placed on the political agenda, they lose elections. That is why they resort to the courts. Once the Supreme Court creates what it chooses to call a constitutional right, the psychological advantage swings, usually decisively, in favor of a position that had previously lost in the legislature.
Despite the fact that there is nothing in the text or history of our Constitution to support them, the American Justices have converted the Due Process Clauses of the Fifth and Fourteenth Amendments from a guarantee of procedural fairness to a guarantee of substantive rights that they, though not the legislatures, favor.
The trends I have been describing are rapidly changing the form of our government and of foreign governments. It is remarkable, however, how few people are aware of the systematic drive of the courts of the Western world. It is similarly remarkable how little people know of what courts are supposed to do.”
In Gramsci, Alinsky the Left, I discuss how Globalism – “Olympianism” – is advanced using Gramsci’s theory of Counter Hegemony:
Antonio Gramsci created the Theory of Cultural Hegemony – the way in which nations use cultural institutions to maintain power in capitalist societies. Gramsci felt that in order to change society, the entire value systems of Societal Institutions must be overturned. This would require the introduction of an entirely new set of cultural values and beliefs – Counter Hegemony.
How do you truly change Culture? You change it by removing the identities of Culture. Change the way institutions work – change the family, church, school and ultimately the law – change social norms and beliefs – and create a new morality.
Gramsci embraced gradualism – a policy of gradual reform as a means to his end. He recognized that his process must be lengthy, methodical and persistent. He advocated evolution over revolution – or as he put it “a long march through the institutions”. A slow transformation from within.
Marxist/Socialist philosophers – led by the Frankfurt School – brought Gramsci’s teachings to the United States. They employed a technique called Critical Theory – a social theory oriented toward critiquing and changing society as a whole. The point of the theory is to criticize every traditional social institution as a means to breaking down Western Culture. Though they did not coin the term, Critical Theory provided the origin of Political Correctness.
The goal of the Frankfurt School was to move America gradually to the Left using the precepts of Gramsci’s Counter Hegemony, Gradualism and the practice of Critical Theory. Changing the Culture of America through Gramsci’s “long march through the institutions”.
As Theodor Adorno – a leading member of the Frankfurt School – wrote in The Authoritarian Personality, you create a “genuine liberal” – an individual “free of all groups, including race, family and institutions”. A Global Citizen. And according to Adorno, anyone who defended traditional culture was inherently a Fascist.
Judge Bork warned of this cultural erosion repeatedly – most recently in a 2010 lecture entitled Keeping the Republic: Overcoming the Corrupt Judiciary:
“America, beginning about 50 years ago, has steadily become less of a republic, and there will always be those who prefer the victory of their interests to republican processes. The problem is both political and intellectual, and so must be the solution. Almost regardless of the outcome of the intellectual struggle, however, there remains the political battle to nominate and confirm justices and judges who spurn activism as illegitimate and will be guided instead by the original understanding of the principles of the Constitution. This may be the more difficult task. Many politicians, and the activist groups of the Left which they serve in these matters, have no interest in the legitimacy of constitutional interpretation; they care only about results. The appointment of new justices who hold an originalist philosophy is therefore necessary for the preservation of a republican form of government.
A republican form of government is about legitimate processes rather than results, except in those few instances in which the nation has adopted self-denying ordinances, such as our Bill of Rights, that rule out certain results.
Though America does not lack for external threats, it is certainly arguable that our greatest long-term threat comes from within. I refer to our self-identified intellectual elites whom Kenneth Minogue calls the Olympians. Olympianism is a secular religion which does not recognize itself as a religion. Its acolytes, until recently concentrated in the universities and the mainstream media, claim superior knowledge which they will share with, and if necessary impose upon, the rest of us. The bad news is that this class is growing and taking root in the general population, both here and in all the industrial democracies of the West. [Resulting in] an unjustified diminution of democracy, the erosion of national sovereignty, and a judicially imposed movement of the culture to the left.”
Judge Bork also warned repeatedly of the primary tool of the Olympians:
“The most powerful educational and political weapon in the Olympian’s arsenal is the United States Supreme Court and the inferior federal and state judiciaries. Over time, the courts tend to adopt the values of the dominant culture, and that culture today, and for the foreseeable future, belongs to the Olympians.
The reason the judiciary is such a valuable ally to any class or political movement is that the courts, when purporting to speak in the name of the Constitution, even if they speak falsely, are the only institution in America that claims absolute finality for its decisions and is accorded that superior status by all other bodies. The Constitution provides no check upon the courts other than the highly uncertain authority to appoint new judges when vacancies occur.
Thus, today’s judiciary, claiming both omni-competence and finality, has made control of the Court the ultimate political prize and its decisions the most potent weapons in our ongoing political and cultural struggles.”
“Day by day, case by case, this Court is busy designing a constitution for a country I do not recognize” – Justice Antonin Scalia
My primary litmus test for any Supreme Court appointee – or any judge – is adherence to the Constitution. I am not truly referring to Constructionism but rather Originalism. Strict Constructionism requires a judge to apply the text only as it is written. Originalism looks at three factors: original intent, original understanding and original public meaning. It is to this that Judge Bork refers when he says “an originalist philosophy is necessary for the preservation of a republican form of government”.
By looking at the original public meaning of the Constitution for guidance, judges remove their personal beliefs and preferences from their decision rendering. Adhering to the original public meaning of the Constitution leads us to a rule of law as was intended by the Framers of our Constitution – instead of a rule of man. Again, it is our willingness to live by our Republic’s charter – the U.S. Constitution – that allows us to maintain our freedom. A life free from the tyranny of the majority – or rule of man.
Contrast this originalist approach with Hillary Clinton’s statements during the Presidential Debates:
“I would like the Supreme Court to understand that voting rights are still a big problem in many parts of our country, that we don’t always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise. I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose, and I want a Supreme Court that will stick with marriage equality.”
She used the term “I want the Supreme Court to understand” twice. She used the term “I want” in relation to Supreme Court views seven times.
Most importantly, nowhere in her answer did she refer to the Constitution. Not once.
Then came President Trump’s response. His first words were, “I am looking to appoint Justices very much in the mold of Justice Scalia”. I am nominating “people who would respect the Constitution of the United States”.
Quite the contrast. And precisely why President Trump’s election was of such great import to our nation. To our Republic.
Judge Bork, who died in 2012, was probably smiling somewhere.
The importance of nominating judges – at all judicial levels – who have respect for – and adherence to – our constitution cannot be emphasized strongly enough. Judges who recognize and embrace the crucial role of Originalism as a means for removing personal preferences and biases from their judicial rulings. It is only through the protection of our Republic’s charter – our Constitution – that we protect ourselves and our freedom.
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