Stephen McDowell
President, Providence Foundation
Editor’s Note: This insightful and challenging article was prepared long before the U.S. Supreme Court ruled June 26 in Obergefell v Hodges that homosexual “marriage” is the law of the land. Stephen McDowell is president of Providence Foundation, a Christian educational organization committed to training leaders to transform the culture for Christ.
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September 2015 – In recent decades, the Supreme Court has made numerous declarations regarding matters of life, family, liberty, and property that are clearly contrary to the Creator-endowed rights of our founding documents. Many Americans seem to think the declarations of a majority of judges are the final word on these matters. Judges may declare all they want, but such a declaration does not make it so. Yet, if a few judges make such declarations, who will hold them accountable? According to our founding governmental principles and the U.S. Constitution, it is the people.
“We the people” is one fundamental component of American constitutionalism. Unlike most nations in history, America was not ruled by an elite few. All citizens had a voice in how they were governed.
Over the past few decades, activist judges have assumed the place of unelected lawmakers. With little resistance or outcry from either the Congress or the general populace, we have embraced what is likely the most absurd idea in modern American polity – that a handful of men and women sitting on the Supreme Court will decide for 320 million citizens what is lawful, right, and acceptable behavior.1 These few have decided the value and origin of life, the meaning of private property, the role religion plays in public affairs, the place of religious convictions in business, and now, most recently, what constitutes a marriage. Most of their decisions regarding these matters have been contrary to the decrees of the Creator, Who, according to the Declaration of Independence – our founding covenant document – is the source of our life, liberty, and rights.
We are moving from a representative republic to an oligarchy, one becoming more and more oppressive, especially for those who believe in Creator-endowed rights. Most of the founders could never envision runaway courts. Alexander Hamilton wrote, “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. … [T]he judiciary is beyond comparison the weakest of the three departments of power… [and] the general liberty of the people can never be endangered from that quarter.”2
If the courts ever attempted to usurp legislative or executive authority, the founders believed the Congress would rein them in, as the U.S. Constitution clearly gives the legislative branch (which represents and is elected by the people) the primary power in the federal government.
James Madison declared that “the legislative authority necessarily predominates.”3 The founders understood the tendency of man to abuse power, therefore they separated it among three branches of government and invested most power in the people through their elected representatives. Due to ignorance, apathy, and bad education, we are gradually embracing the idea of judicial supremacy, where judges not only interpret, but also make and enforce law. This is in stark contrast to the founders’ view of constitutional supremacy.
Insightfully, Thomas Jefferson did warn of the potential abuse of courts, writing that “the germ of dissolution of our federal government is in the constitution of the federal judiciary.”4 He acknowledged the constitutional provision of impeachment5 as a means of checking their activism, but suggested a more practical fix, which we should institute today: “Let the future appointments of judges be for four or six years, and renewable by the president and Senate. This will bring their conduct, at regular periods, under revision and probation.”6
Given that most Americans profess democratic ideals, you would think everyone would agree on curbing the aristocratic concept of judicial rule. But alas, many folks, thinking their immoral values would more easily gain ascendency through aggressively positioning a few people on the courts rather than winning the battle of ideas in the general public, oppose restricting the judiciary.
They posit various scenarios of checking the rule of the majority via enlightened judges, like asking, “What if the majority wants slavery? How would we stop this?” Yet, the more frightening (and likely) scenario is, “What if five judges want slavery?” It is much easier to get five men to embrace wrong ideas than 160 million voters.
America is a federal republic, where certain God-given inalienable rights are guaranteed by our Constitution. Thus for slavery, or anything contrary to “the laws of nature and nature’s God”7 to be established, it would require three-quarters of the states to approve such a measure. A three-quarters majority is significantly more difficult to obtain than the decision of five judges. Some say that the Supreme Court will never exhibit such drastic behavior or enact such rulings. But in fact it has. In the Dred Scott decision of 1857 the Supreme Court denied the personhood of blacks, and in Roe v Wade (1973) it denied the personhood of unborn children.
The courts have made numerous unconstitutional decisions (according to the intent of the framers), especially in modern times, that have violated the will of the majority of citizens and more importantly the will of God. It has been primarily through the courts, with the rulings of a very small number of people, that a new definition of the family has been imposed upon the American people.
Recently, judges have ruled that business owners must provide services to customers even though such actions violate their strongly held religious beliefs. Florists, bakers, and photographers have been ordered to accommodate same sex weddings or else face fines or worse.
Homosexual activists and misguided liberals have frequently claimed victory, but the rulings by these judges are both dangerous and unconstitutional. Giving such power to the judiciary puts all our God-given and constitutionally secured rights in jeopardy. What is next? Our right to life, or fair trial, or public protest? Will judges rule that you cannot run for office or vote if you oppose homosexuality or same sex marriage? For the liberal thinker, what if a judge ruled only regenerated Christian believers could run for office, own property, and vote? Why would anyone, liberals included, want to trust their inalienable rights to a few judges? The people as a whole are a much better security.
With the current system of an unaccountable activist federal judiciary, many other unjust decisions will surely take place. When such rulings occur what should we do? How do we restrain the judges? The Constitution provides numerous ways that Congress – the representative of the people – can check activist judges. These include:
1.Impeachment – Judges can be impeached for high crimes and misdemeanors (Art. II. Sec. 4). In the past, judges have been removed for public drunkenness 8 and even bad rulings.9
2.Restrict jurisdiction – Congress can regulate much of the jurisdiction of the federal courts (Art. III, Sec. 2).
3.Reorganize the courts – Congress can establish and reorganize a system of inferior Federal Courts (Art. III, Sec. 1).
4.Cut off money – All bills raising revenue originate in the House of Representatives (Art. 1. Sec. 7, 8), hence Congress can use this power to restrict a runaway judiciary.
It would be best for competent judges10 to be appointed by the president and confirmed by the Senate, and hence, use of the above means would not be necessary. Yet, even the best of judges need to be held accountable, and the current constitutional provisions to do so have not worked well. We should heed the advice of Jefferson and change their terms to four or six years, with reapproval needed for continued service.
Jefferson said that “to consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”11 In fact, the U.S. Constitution sprang from the people, not from an elite few rulers.
It is high time we returned to the liberating idea and practice of self-government.
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1 Thomas Jefferson said it this way: “That there should be public functionaries independent of the nation, whatever may be their demerit, is a solecism in a republic, of the first order of absurdity and inconsistency.” Letter to William T. Barry, July 2, 1822, The Writings of Thomas Jefferson, Albert Ellery Bergh, editor, Washington, DC: The Thomas Jefferson Memorial Association, 1903, 15:389.
2 Alexander Hamilton, James Madison, and John Jay, The Federalist, A Commentary on the Constitution of the United States, New York: Henry Holt and Company, 1898, No. 78, pp. 518-519.
3 Ibid., No. 51, p. 345.
4 Thomas Jefferson, “Letter to Charles Hammond, Aug. 18, 1821,” The Writings of Thomas Jefferson, 15:331-332.
5 Jefferson’s Autobiography (1821), in Writings, 1:120-122.
6 Letter to William T. Barry, July 2, 1822, Writings, 15:389.
7 This phrase in the Declaration of Independence had a well established meaning. The laws of nature are the general revelation of God in creation and the conscience of man, and the laws of nature’s God are the specific revelation of God in the Holy Scriptures (see Stephen McDowell, America a Christian Nation, Charlottesville: Providence Foundation, 2004, p. 7-12).
8 Judge Pickering of New Hampshire was impeached as a “habitual and maniac drunkard.” (See Thomas Jefferson’s Autobiography, in Writings, 1:121.)
9 See David Barton, Impeachment, Restraining an Overactive Judiciary, Aledo, TX: WallBuilders, 1996.
10 To prepare competent judges we must change the philosophy and content of what is taught in colleges and law schools.
11 Thomas Jefferson, Letter to William Charles Jarvis, Sept. 28, 1820, The Writings of Thomas Jefferson, 15:277. 
*oligarchy [ol-i-gahr-kee] 1. a form of government in which all power is vested in a few persons or in a dominant class or clique; government by the few. 2. a state or organization so ruled. 3. the persons or class so ruling.
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