Among the three branches of American government, there is supposed to be a system of checks and balances to curb any abuse of power. That is at least the theory. In practice, the judicial branch is now engaged in a campaign of checks without balances or precedent. Judges are becoming tyrants without restraint.
It is ironic because the role of the judiciary is restraint. Judges are called upon to interpret the law and establish its limits. They are now making the law and erasing its boundaries. Federal judges now wield seemingly unlimited power. They strike down laws, executive orders and regulations at a stroke of a pen. Even the American president is subservient to the actions of these unelected, unaccountable, public servants-now-made-masters.
Two recent cases serve to illustrate this expansion of powers. President Trump, as commander-in-chief, sought to prevent “transgendered” people from enlisting in the military. His decision was struck down by a single U.S. district judge. Then, his executive order nullifying the previous president’s executive order regarding the so-called Dreamer illegal immigration program (DACA) was likewise stopped in its tracks by the action of a single federal judge from San Francisco.
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These are not just rogue judges who have exceeded their powers. Rather, their actions reflect the disintegration of the constitutional order they swore to defend. When there is no order, everything is possible, and judges can become tyrants.
The Concept of a Constitution—More than Just a Document
Many think that the Constitution only consists of the legal document crafted by the Founders, ratified, and amended over time. However, a constitution is more than a document. It is a body of doctrines, customs and practices that comprise the fundamental organizing principles of a state. It may be written like the U.S. Constitution. It may also be unwritten, like that of Britain that relies upon a collection of documents, traditional practices and customs. According to the English political philosopher Viscount Henry Bolingbroke, a constitution is “the general system, according to which the community hath agreed to be governed.”
Even the U.S. Constitution relies upon unwritten concepts. It employs many phrases and terms that are found in the British legal vocabulary. It is based on English common law that goes back some 800 years and thus reflects many institutions, laws and customs, written and unwritten developed over the centuries.
The great conservative thinker, Russell Kirk highlighted the importance of these unwritten elements saying that “beneath any formal constitution—even beneath our Constitution…—lies an unwritten constitution much more difficult to define, but really more powerful”: This unwritten constitution consists of “the body of institutions, customs, manners, conventions, and voluntary associations which may not even be mentioned in the formal constitution, but which nevertheless form the fabric of social reality and sustain the formal constitution.”
That is to say, the American Constitution is only as strong as the institutions that hold it up. The whole social fabric sustains it. When those supports are broken, the constitutional order also suffers.
A Higher Law Tradition
The American Constitution is also based on divine and natural law. It was conceived in a higher law tradition. Both Sir William Blackstone and Sir Edward Coke, the ultimate authorities on the English common law adopted by America, claim that it is strongly influenced by higher law as summarized by the Ten Commandments. This higher law is defined by Blackstone as “binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this.”
Indeed, William J. Federer wrote a book titled The Ten Commandments and their Influence on American Law. It is an exhaustive compilation of texts that show how each of the Commandments historically impacted the development of law in America as established by the Constitution. The Commandments are intertwined with American law even today.
Thus, the U.S. Constitution is a document that, like it or not, reflects ancient customs, institutions, and laws of the past. It is based on a higher law tradition that again, like it or not, is reflected in the Ten Commandments. This is simply a historical fact, not an interpretation. This is the stable foundation upon which American law once rested.
A Constitutional Crisis of Unprecedented Gravity
The crisis facing the American judiciary today is fundamentally constitutional and of unprecedented gravity. It is not just a problem of rogue judges overextending their power. Rather the problem lies in the destruction of the foundational premises and institutions of American law and society.
For decades the entire legal tradition regarding social institutions has been challenged as reflected in decisions on moral issues like abortion, pornography and homosexual “marriage.” The stable nature of law has been replaced by the concept of a “living” evolving constitution that changes with the liberal whims of those who interpret it. The higher law tradition has been abandoned so that morality is no longer objective but reflects the relativistic and permissive whims that dominate American culture.
Above all, the concept of ordered liberty, so prized by the Founders, no longer means the control of the enslaving passions that prevent the person from making choices toward a perceived good. Instead, it has come to signify the anarchical concept of the autonomy of every individual to ultimately judge and determine what is right and wrong. This denial of moral limits is found in the infamous U.S. Supreme Court decision, Planned Parenthood of Southeastern Pennsylvania v. Casey, in which Justice Anthony Kennedy states: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Creating the Conditions for Judges to Wield Unlimited Power
An atmosphere in which all is permitted destroys the notion of restraint inherent to law. The idea of a living, evolving constitution demolishes its certainties. The inevitable consequences can only be the disintegration and fragmentation of the constitutional order that once united the nation. It further reflects a fragmented culture that likewise respects neither restraint nor certainties.
Thus, the judicial tyranny in which judges wield unlimited power becomes possible. Where there is no consensus about what is to be limited, nothing can be forbidden. Where no higher law binds society to a universal moral code, judges become a law unto themselves. The destruction of Kirk’s “unwritten constitution” ends up overturning the written one. A fragmented America no longer has the conditions to maintain that “general system, according to which the community hath agreed to be governed.”
In such a backdrop, judges reign supreme, holding the nation hostage by their diktat as to what constitutes or not the supreme law of the land. They abuse the rule of law to enforce their distorted interpretations. They are accountable to no one.
Good judges are essential for the future but more important is good law—especially higher law that is both compass and anchor to a truly constitutional and moral order under God.