The U.S. Constitution turns its attention to the judiciary only after outlining the powers and responsibilities of the executive and legislative branches of government. Alexander Hamilton wrote that the courts were “the least dangerous” branch of the government, since they could neither order troops nor raise money. Yet it often seems as though America’s judges are the most powerful decisionmakers in American politics.

The Supreme Court tells us under what circumstances we may apply the death penalty—if we may apply it at all. Abortion is a subject that has been at the forefront of politics for a generation. But it is the justices of the Supreme Court, not elected officials, who almost entirely set abortion policy.

At the other end of life, it is the justices who have created a limited right to assisted suicide—and who will decide how limited it will remain. The most innovative idea in education policy is school choice. If the justices had not narrowly given it their approval, the experiment in school choice would have ended before it began.

Federal judges are also involved in the war on terrorism, which they are subjecting to a “rule of law” that looks, to the untrained eye, like an ever-changing series of judicial edicts. State judges, too, have a remarkable amount of power.

In several states, they have redefined marriage as a unisex affair—and while voters have in most cases amended their states’ constitutions to overturn the judges, some of those judges are likely to succeed eventually. Given the power judges wield, it is hardly surprising that presidential campaigns have, to some extent, become races for chief judge-picker.

When critics say that the modern judiciary has too much power, its defenders have a ready answer. The courts, they say, are just enforcing the Constitution, as they have always done. The problem isn’t the courts, they add, but the critics, who are threatening the independent judiciary that the Founders gave us. Senator James Jeffords recently explained why the critics should desist: “The first lesson we teach children when they enter competitive sports is to respect the referee, even if we think he might have made the wrong call. If our children can understand this, why can’t our political leaders?”

But the modern courts have gone far beyond their original role. The Supreme Court first suggested that it could set aside unconstitutional laws back in 1803, when it decided Marbury v. Madison. In that decision, the Court reasoned that Congress was asking it to exercise a power that the Constitution did not give the judiciary. The Court concluded that it could not execute an extra-constitutional power.

The modern variety of “judicial review” is very different. Nowadays the Supreme Court often “interprets” the Constitution with little regard for its text, history, or structure. Laws that violate these “interpretations” are routinely nullified. Rather than declining extra-constitutional powers, in other words, the courts are seizing such powers. And the Court claims to be able to settle constitutional issues with finality. Marbury did not assert such a broad claim, and the Court did not read Marbury to assert it until the 1950s.

It is this claim to have the final say on what the Constitution means that has led to troubling expansions of judicial power. We now have a “referee” who makes up the rules of the game as he goes along—including the rules that set forth the limits of his own power. A power largely unchecked is likely to be a power abused. So it has been with the Supreme Court. Its jurisprudence has floated further and further away from any grounding in the Constitution.

The latest innovation has been to look to foreign opinion as a guide to what American law should be. If the justices are not bound by the understanding of the American public that ratified the Constitution—and if nobody can overrule or challenge the justices—why not look abroad for ideas?

We now have an entire legal culture that celebrates freewheeling judicial creativity. What we now have, in other words, is judicial rule. The courts may not be setting our foreign policy or our traffic rules, but they claim a boundless and practically unchecked power to make law.

Perhaps there are arguments for allowing a legal elite to rule us in this way. Perhaps this elite, which really does have superior intelligence to the average person, will give us more enlightened and just laws than the people would devise for themselves. But the public never ratified a Constitution that gave any elite such power—any more than the public ever ratified abortion-on-demand and same-sex marriage.

Critics of the modern judiciary sometimes quote Hamilton’s remark about the “least dangerous branch” ruefully, as though to say that he had been proven wrong. But Hamilton was right. The judiciary is not very dangerous on its own, however wrongheaded it may be, because it “has no influence over the sword or the purse; no direction either of the strength or of the wealth of the society.” It can attain overweening power only with the acquiescence of the other branches of government.

What's At Stake?

Regardless of where you stand on these issues isn't it important for people to take a more active role in our governance?"

Gay Inmates request permission to marry in Massachusetts' prison"

Nearly one year ago the state of Massachusetts began issuing legal marriage licenses to same sex couples. Since then, similar moves in other states have fueled a backlash resulting in 11 states passing state constitutional bans on same sex marriage.

Meanwhile citizens of Massachusetts are finding the boundaries of the newly extended rights of same sex couples tested by the request of imprisoned sex offenders, Essie Billingslea and Bruce Hatt, for permission to marry. The request was denied however by prison officials who cite security concerns as their primary reason for the refusal.

"As Beacon Hill yesterday renewed the debate on efforts to curb the state's nearly year-old gay marriage rights, supporters of gay marriage were cautious on the issue.

'It just seems off-topic for me,' said Marc Solomon, political director of MassEquality. ' We are focused on legislators and stopping the constitutional amendment.' to ban gay marriage.

The tug of war

Before Terri Schiavo died of starvation resulting from a court order to remove her feeding tube, the legal case that ultimately determined her fate bounced from the courts to both houses of Congress but was finally decided by the opinion of one judge.

When the Florida legislature took steps to reverse the decision to remove her feeding tube the first time, legal expert and author Wesley J. Smith shed light on the fault lines of the battle by responding to critics opposing the court's action.

"But legislative actions to circumvent unpopular court rulings are part of our system of checks and balances. Few complained, for example, when Congress recently passed legislation to override the federal courts after two judges refused to permit the national telemarketing 'do not call' list to go into effect.

Finally, Terri's Bill passed by a huge margin in the Senate, and after a brief reconciliation with the House version, the bill became 'Terri's Law.' But if the supporters of Terri's life thought that this meant Terri was ipso facto saved, they were being naive. In the legal and political battles over the culture of death, nothing is easy. Rehydrating Terri would be no exception."

What the Congress giveth the courts may taketh away

In June of 2002 a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that reciting the Pledge of Allegiance in public schools is an unconstitutional "endorsement of religion" because it includes the phrase "under God". Debates raged across the country in response causing many to re-examine the reason the Congress voted to add the phrase "under God" to the Pledge in the first place.

"In 1954, though, when the Pledge was modified to include the phrase "under God," what was motivating Congress? There were a lot of things motivating Congress. We were in the midst of the Cold War. There was this desire to treat and to establish the difference between how we viewed our rights and liberties, and how communism viewed these things, which is any rights that you have, whatever they might be, are derived from the state; the state is supreme. Congress, reflecting, again, on what the founding fathers thought, said, No, it doesn't work that way. We believe the foundation of our country is different, and this shows the difference. We believe that our rights come from God to mankind."

Jay Alan Sekulow

Roe v. Wade: The end of legislative debate

"One of the many unintended consequences of Roe v. Wade, in removing abortion policy from the routines of political debate, has been to grant this question a strategic significance across the political landscape. The determination by the Supreme Court that what is to many Americans the leading question of bioethics is not susceptible of general resolution but rather a private matter for individual women both articulated and exemplified a retreat from substantive ethical discussion into proceduralism."

Nigel Cameron

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