Nancy Salvato, Senior Editor
Judicial Activism Undermines the Integrity of the Constitution II
March 17, 2004

As I previously explained in Judicial Activism Part 1, the Elastic Clause, Commerce Clause, 14th Amendment, and the Doctrine of Incorporation have been employed to sanction the federal government’s jurisdiction over what the framers of the Constitution left to the states. These paved the way for the federal judiciary authority over busing, quotas, school district boundaries, abortion, Miranda warnings, probable cause for arrest, prison and asylum standards, libel, pornography, subversive speech, and the separation of church and state.

Loose interpretation of the Constitution has further extended the federal court system because courts are not compelled to refer to the actual constitutional text, instead citing penumbras; the idea that specific guarantees of the Bill of Rights imply unspecified rights that the courts may invoke to strike down state laws. The basis of this interpretation is that the US Constitution was devised in part to make sure that rights not enumerated in it would be protected. In various cases, the first, fourth, and fifth amendments have been interpreted to mean the right to privacy. This began with Griswold v Connecticut (1965). This implied right was later interpreted to mean a "right to an abortion" in Roe v. Wade.

From the case Lemon v Kurzman (1971), came the Lemon Test to determine whether certain state laws violate the separation of church and state. This is accepted by some as a constitutional principle even though this notion was never espoused by the framers. This test helps determine whether a law has a secular legislative purpose, is not intended to advance or inhibit religion, and doesn’t foster excessive entanglement with religion. The Reindeer Rule regulates which Christmas displays can be put up by a local government. These cannot have a religious purpose. The Constitution has been interpreted to mean that it doesn’t permit government sponsoring of religion. Secular images such as reindeer are considered permissible. Non secular images must be surrounded by secular images.

How much has the Judicial Branch overstepped their reach? Samuel Francis quotes Professors Quirk and Bridwell, in their book Judicial Dictatorship, "As of 1993 the courts controlled 80 percent of all state prison systems and about 33 percent of the five hundred largest jails in the nation, and the Supreme Court routinely overrules the actions of the local police, boards of education, and the state laws under which they act. The beneficiaries of the Court's protection are criminals, atheists, homosexuals, flag burners, Indians, illegal entrants, including terrorists, convicts, the mentally ill and pornographers." Liberal political movements that loosely interpret the Constitution regularly gain ground because they favor government intervention to protect the farmers, laborers, and minority groups.

If we continue to accept the idea that the Constitution is an evolving document, the framers intentions for the rule of law will be lost to the ages. Courts will continue to impose on the language whatever meaning they wish. Federal courts repeatedly strike down popularly and legally enacted laws intended to protect American liberties. Instead they impose their own rulings as laws on communities that never voted for them. In virtually every area where the courts have intruded, their rulings further strip the states and local governments of their legitimate rights and powers and grant illegitimate powers to the federal government. The courts get away with this because neither our elected lawmakers nor the citizens themselves have called them to account for their actions. Have we forgotten the true nature of our Constitution and the limits it places upon centralized power?

As of late, there has been continued debate about amending the constitution to define marriage as a union between a man and a woman. Prior to this there has been discussion about "correcting the excesses of the courts through constitutional amendments like the school prayer amendment, the balanced budget amendment, term limits amendments, the human life amendment, and the flag amendment, which would reverse the Court's 1989 ruling striking down state laws against burning the American Flag.” ¹

A better remedy would be to, "Limit the appellate jurisdiction of the Supreme Court.” ² This is conceivable because Article II, section 2 of the Constitution states that, "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned [in the first part of the section], the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” ³ Therefore, Congress has the power to enact a law withdrawing Supreme Court jurisdiction in cases involving claims against the states and effectively abolish the Incorporation Doctrine. There is already a precedent established for this type of action in the 1868 case Ex Parte McCardle.

Congress can abolish or limit the jurisdictions of the lower federal courts which they created in the first place. Article III, section 1 of the Constitution reads, "The judicial power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish." ⁴ Francis suggests that, "By abolishing or limiting such courts Congress would remove the breeding grounds in which many false judicial doctrines are spawned...”

Resources
(1, 2, 3, 4) Judicial Tyranny by Samuel Francis http://www.thenewamerican.com/tna/1997/vo13no08/vo13no08_supreme_court.htm
States Rights: http://www.costumesupercenter.com/csc_inc/html/static/btarticles/thepresidentsoftheunitedstates.html