PART 3 OF 3
By Michael DePrimo, Attorney, AFA Center for Law and Policy
June 2009 – Once considered a city on a hilltop and a beacon of light to the world, America is now viewed by many here and abroad as a cesspool of moral decadence. How did this happen and who is responsible?
Being a constitutional republic, the United States is a nation of laws and not of men. That means unbridled power is not vested in a single individual or even a single branch of government. Our Founding Fathers wisely divided our nation into three branches of government with separate and distinct powers that provide checks and balances to each of the other branches.
The executive branch is seemingly the most powerful because it has the authority to use police and military force to carry out its policies. The legislative branch is a close second because it has power and authority to make and repeal laws and also because it holds the purse strings to the federal treasury, i.e., it is Congress alone that appropriates the funds necessary to keep the government functioning. Supposedly running a distant third in governmental power is the judicial branch.
Article III, Section 1 of the U.S. Constitution states that “[t]he 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.” Section 2 limits federal court jurisdiction to “cases” and “controversies” and does not authorize federal courts to issue “advisory” opinions. Under the Constitution, federal courts have no role in fashioning laws or government policies.
During the founding period, three men wrote The Federalist Papers, a series of writings in defense of the Constitution. In Number 78 of this series, Alexander Hamilton characterized the judiciary as the “least dangerous branch” of the federal government because it had “no influence over either the sword or the purse” and “neither force nor will, but merely judgment.”
What he meant was this: the role of the Court is to declare what the existing law is in accordance with the intent of Congress. Judges have no authority to substitute their own personal judgment or political preferences for that of duly elected representatives.
While true in theory, it has not worked out that way in actual practice. For decades federal judges have substituted their personal judgment and experimental social policy in place of the intent expressed by our elected representatives. And they have done it cleverly by characterizing the Constitution as a “living document” that changes with “evolving standards of decency.” President Thomas Jefferson gave solemn warning against those who would subvert democracy through judicial activism, saying, “Our peculiar security is in the possession of a written
Constitution. Let us not make it a blank paper by construction.”
We need examine only a handful of Supreme Court decisions rendered in the past 50 years to demonstrate that Jefferson’s warning was prophetic, i.e., that our Constitution has been made a blank paper by construction. In 1962 and 1963, for example, the U.S. Supreme Court ruled that prayer and Bible reading in public schools violated the Establishment Clause of the First
Amendment. Yet prior to that decision, prayer and Bible reading were part of public education for hundreds of years.
Indeed, the first law establishing public education was adopted in Massachusetts in 1647. It was called the “Old Deluder Satan Act” and was intended to ensure that schoolchildren could read their Bibles so as not to be deceived by Satan.
Perhaps the most infamous rewriting of the Constitution occurred in 1973 in Roe v. Wade, which came on the heels of the 1960s sexual revolution.
What else lurks in the dark corners of the Constitution that only Supreme Court justices have vision clear enough to see? A few years back they found a fundamental right to homosexual conduct lurking there. Will the Court soon find a hidden right to same-sex marriage or assisted suicide or euthanasia? Probably yes.
Today’s Supreme Court justices increasingly act as policymakers and social engineers rather than judges. And they are exceedingly dangerous because they are not accountable to the people or anyone else. Foisting personal preferences on Americans under the guise of judging cases is nothing less than judicial tyranny. Tyrants in black robes are no better than tyrants with guns; both use unlawful power to force citizens to submit to their will. The moral decay of the United States is in large part a result of judicial activism – a once honorable Court run amok. 
