Time to Rescue the Rule of Law from a Judicial Aristocracy
The framers of the Constitution of the United States were not fond of unjust monarchs nor aristocracies which showed no regard for the people. They fled the abuse of power in the hands of an unjust monarch and formulated a system of governance to protect against the concentration of power in the hands of a privileged few. We have a prohibition against titles of nobility embodied in the U.S. Constitution for good reason. It attests to the seriousness with which they approached governance.
Most historical references to the dangers the framers intended to alleviate involved the possible abuses of the authority of the Executive and legislative branches. However, a new aristocracy has emerged, an imperial judiciary unchecked in its power to restructure the social order by manufacturing new “rights” while they disregard the very Rule of Law they purport to be defending.
The Rule of Law
The expression “Rule of Law” holds a special place in our public discourse, as well as in the opinions of some of these judges. However, the term has become so malleable it has lost its certitude. We claim that the American polity is a “government of law and not of men” – but what does the phrase mean? Who decides what the Law is? Does the law exist beyond the people who make, interpret or enforce it?
The Declaration of Independence was the Birth Certificate of our Nation. It boldly proclaimed: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights – that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men.”
The principles the Declaration communicates have informed our history as a free people and inspired our neighbors in other parts of the world to stand up against all forms of tyranny. Our forebears were not declaring their independence from Divine Providence. Rather, they were trusting in the primacy of the Governance of God over their own lives and their noble undertaking at building a new Nation.
They sought independence from a monarchy which had become tyrannical. Partly because it promulgated “laws” at whim and enforced them in an unjust and unequal manner. The principles were a rallying cry which called forth extraordinary sacrifice from ordinary men and women. They became a measuring stick against which all governments of men would be measured in the future. What has become of this notion of the Rule of Law?
The founders of the United States of America believed there were objective truths to be held and that those truths are self-evident. Those truths also include the existence of unalienable rights given to all men and women by a Creator and not by a civil government. They believed that those truths and those rights can be discerned by all men and women because they are revealed by a Natural Law which is written on all human hearts which is a participation in God’s eternal law. It formed the foundation and reference point for the Rule of Law.
There is a new disregard for the real Rule of Law which comes clothed in the language of the rule of law. It is a new verbal and judicial sleight of hand. It has found traction in an age which has forgotten the American founder’s insistence upon the existence of a natural moral law and an understanding of rights as endowed by a Creator.
The recognition of the preeminent Right to Life clearly set forth in the words of the Declaration is undermined by the positive/civil law of the Nation which the Declaration helped to birth. How can a Nation which has enshrined the killing of innocent children in the womb in its positive law claim that that it still recognizes the unalienable right to life? How can a Nation now opening the door to euthanasia proclaim that it respects the dignity of all human life?
Certainly, the American founders would have agreed it is always and everywhere wrong to kill an innocent neighbor. How can we read Jefferson’s words, “God who gave us life gave us liberty” and not see the evil of a jurisprudence which puts the police power behind the intentional taking of her/his life? It was unelected judges on the US Supreme Court who manufactured a new “right” to kill our first neighbors in the womb in the companion 1973 cases of Roe and Doe.
That majority opinion authored by Justice Harry Blackmun simply ejected the Natural Law Right to Life enshrined in the birth certificate of our Nation, the Declaration of Independence. The opinion instead manufactured a new and counterfeit “right” to take the life of our youngest neighbors in the womb. Ironically it rooted such a “right” in what it called a “liberty” interest. Would this notion of liberty have even been imagined by the American founders?
In 2003, Justice Kennedy, in the Lawrence opinion of the Supreme Court, wrote that liberty is “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The language first appeared in Planned Parenthood v Casey. That was not only bad metaphysics but blatant legal positivism; a philosophy which says, in effect, that the law is what the court says it is. The judicial aristocracy had arrived in full measure. It also laid the groundwork for the expansion of the power of unelected judges to manufacture the law.
Twelve years later, that same Justice effectively abolished the uniqueness of marriage as between one man and one woman by redefining the word in the Obergefell decision. He ignored the constitutional limitations of the Court, violated the separation of powers, disregarded the will of the people, ignored the cross cultural witness of human history, rejected the Natural Moral Law, ignored judicial precedent and failed to consider the common good.
The Court used the phrase “equal protection” to attempt to cover an abuse of power and unleashed unequal protection for anyone who disagrees with the new judicial aristocracy. In a dissent, Chief Justice Roberts referred to the majority as “five lawyers”, noting that “the majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.” So much for the Rule of Law.
Time to Rescue the Rule of Law
The separation of powers doctrine by which governance of the United States was supposed to be vested in three co-equal branches, the executive, legislative and judicial, was meant to prevent the concentration of power in one branch. It was also intended to provide a system of checks and balances. The idea was a noble one. The legislative branch would enact the laws and appropriate the money needed. The executive branch would implement the public policy. The judicial branch would interpret the constitution and laws when presented with a case or controversy. How far we have fallen.
The entire notion of the existence of a Rule of Law was grounded in the founder’s reliance upon what the Declaration referred to as “the laws of nature and natures God”. They admitted the existence of a higher law than the civil law. Instead, law has now become what the judicial aristocracy says it is. If we doubt this, we have only to look at the treatment of that clerk in Kentucky who, because of her deeply held religious beliefs, was thrown into jail. She still faces the threat of a loss of her liberty when all she seeks is religious accommodation as guaranteed by the First Amendment to the Bill of Rights of the US Constitution.
If we had the ear of the founders today, would anyone argue that they would have viewed marriage and family as expendable, capable of being redefined by judicial fiat? The two parent, man/woman, marriage bound family was viewed as the first government, first school, first economy, first church, and first mediating institution. Yet, we walk under the ominous cloud of a counterfeit of marriage and family forced upon us all by a new judicial aristocracy. It is time to rescue the Rule of Law.
Mat Staver is the Founder and Chairman of Liberty Counsel and Chairman of Liberty Counsel Action. Liberty Counsel is an international nonprofit litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics. With offices in California, Florida, Virginia and Washington, D.C., and an outreach in Israel, Liberty Counsel has hundreds of advocates around the world.
Keith A. Fournier is Founder and Chairman of the Common Good Foundation and Common Good Alliance. A married Deacon of the Roman Catholic Diocese of Richmond, Virginia, he and his wife Laurine have five grown children and seven grandchildren. He is a human rights lawyer and public policy advocate who served as the first and founding Executive Director of the American Center for Law and Justice in the 1990s. He has long been active at the intersection of faith and culture and serves as Special Counsel to Liberty Counsel.
First published at the Catholic News Agency
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