An Arbitrary Supreme Court
By Rodney Dodsworth – July 1, 2019
Just as Rome never had a king after deposing the last Tarquin, yet breathed her last under unlimited Emperors, America will never have an unlimited, absolute monarch. Instead, it has an oligarchic, arbitrary Supreme Court.
While it is Constitutionally limited to the judicial power, as a practical matter Scotus recognizes no limits on its illegitimate power to legislate.1 It writes law. It rewrites law. It permits executive branch agencies to write laws. It creates rights. It denies rights. It denies religious liberty. It justifies murder and other crimes against nature. When Scotus simply disagrees with a state statute, it justifies its repeal by calling it “arbitrary and capricious.” At its arbitrary pleasure, Scotus often denies self-government to We the People.
What happened? Why do free nations fall into slavery? This deceptively simple question and its answer is at the heart of our Framers’ analysis of government in 1787. Its corollary is how do nations prevent the governmental and societal corruption that ends in tyranny of the one (despot or absolute king), the many (democracy), or the few (oligarchy)?
We are all subject to passions and emotions which, if left uncontrolled, lead to poor outcomes in both our private lives and in government. Those with arbitrary authority, whether kings or our Supreme Court, are no different.
Algernon Sidney (1623-1683) assisted our Framers immeasurably when he wrestled with the lack of public virtue in absolute Stuart-era Kings, whose passions, to the detriment of their kingdom, too often overwhelmed reason. He thought it silly, foolish and dangerous to rely on the caprice of one man for national happiness. His revolutionary precepts held that public virtue, which is simply that of public integrity, of not violating a public trust, was a consequence of republican liberty. Let that sink in.
Rather than cite a virtuous citizenry as the prerequisite to public virtue in our servants, properly designed liberty-enhancing republics minimize private passions in public policy, and thus promote public virtue in government!
Our Framers ran with this idea in their plan of government which controlled the passions of public servants by not only separating powers and electors to the House of Reps, Senate, Presidency and Supreme Court, but also formalized checks on each institution.
Sidney reasoned that because republics were founded on obedience to the law, the defense of common interests and the keeping of covenants, only they could claim the stability, strength, and the pursuit of the public interest that heretofore was associated with hereditary kings.
Article V opponents blame an unvirtuous people too corrupt to send “good” men and women to government for our loss of liberty. This simplistic belief ignores the enabler of societal corruption and loss of liberty, a government that, thanks to the 17th Amendment, no longer checks the passions of Supreme Court judges. History proves that a popularly elected congress isn’t capable of enforcing its Article III checks over Scotus. This corruption of the Framers’ design left an arbitrary Scotus that runs wild without Congressional oversight or limits of any kind. Scotus, not society, booted God from the public square and established so-called rights responsible for a declining native population, extensive damage to both family formation and societal cohesion under a common culture and language essential to liberty.2
We would do well to understand Sidney. Republican liberty discourages public vice and corruption. Members of our un-checked Scotus are free to fall victim to their personal passions and the shortcomings common to everyone. The difference is that you or I cannot impose our passing whims on society. Scotus can, and does.
Republican liberty is but a dream, an impossibility without restoration of Constitutional checks on Scotus. Repeal the 17th Amendment. Article V.
1. The Constitution grants Article III judges a circumspect Judicial Power and not plenary authority to cast about the Constitution in search of undiscovered positive rights. In a system famous for checks of one branch upon another, the Framers provided further safeguards against an arbitrary, oligarchic judiciary. Congress has explicit authority to regulate the court system and define much of its jurisdiction. Scotus – Don’t Blame the Framers
2. The rot extends to lower federal courts. President Trump declared a national emergency this year and redirected $6 billion from the Defense Department’s various projects to build the border wall. District Court Judge Gilliam, an Obama appointee, turned his previous temporary injunction into a permanent injunction, which barred the Trump administration from building the wall in California, Arizona, New Mexico and Texas. His ruling specifically blocks the administration from using $2.5 billion in military funds for the wall.