"The supreme court under this constitution [U.S.] would be exalted above all other power in the government, and subject to no control." Brutus, Anti-Federalist Papers 78-79, Part one is taken from the first part of “Brutus’s” 15th essay of The New-York Journal on March 20, 1788; Part two is from part one of his 16th of the New York Journal of April 10, 1788, accessed at "The Federalist Papers," http://www.thefederalistpapers.org/antifederalist-paper-78-79, Oct. 12, 2014.
Any honest person with the least legal training and who has read the Roe v. Wade opinion, the 2013 opinion on the Defense of Marriage Act & the same sex marriage opinion of 2015 will come away with this incredible question, among others: How could any court, much less the highest court of the land, act with such lawless abandon to endorse such evil? Neither opinion can be described as based on any law, any law except the opinion of a majority of the Justices on the Supreme Court. Lawless, arrogant, and unappealable.
The United States Supreme Court has now become a supreme royal ruler, acting on its own opinion and prejudice of the individual Justices. Five Justices (a majority of nine) now rules, and we know not how to stop it. Its opinions are supposed to be based on carefully analyzed and restrained opinions, but some of its most recent opinions have been based - with not even a cloak of law - on the personal opinions of five of its Justices. Why?
America likes to pride itself on being the proponent of the "rule of law," something mankind has fought for throughout history. It's what we contend for in Afghanistan. The alternative is the rule of man. But if a new ruler - a court instead of a king - becomes the final authority, with no appeal beyond it, then haven't we come full circle, if that court decides issues affecting the entire country based on its own opinion?
So, how did such an ideal and desirable goal - the rule of law - become so perverted in less then three centuries? To put it simply, once the center, the fulcrum of rulership, shifted from the church and the king to a foundational document, that is, the constitution, then those who interpret the words of that document, the lawyers, became the center of power and control over the priests and all the king's men. There is only one interpreter above the lawyer - the decision-maker, the judge who decides which lawyer in a case is correct. He that controls the interpretation of the law controls the law. If perverting the law in order to advance one's personal predilections and beliefs is the key to power, then some seem to have little compunction about engaging in such perversion.
What's scary is that the founders thought that judicial independence would be the barrier to protect us from the rule of man. They apparently did not think that things would go so awry as they have today. The following is quoted from an Alabama appellate court decision's dissenting opinion. It sums up some of that thinking.
"In this state, the scope of the power of the executive has been viewed to be only as extensive as granted by the constitution. This court in deciding a case under the Constitution of 1875, which was essentially the same as the Constitution of 1901 in its statement concerning separation of powers, stated as follows:
"‘With us, the governor has no prerogatives. He must find warrant in the written law for his every official act. He has no more power to appoint officers, when not expressly conferred, than has the president of the senate, who is of the legislative, or the chief justice of this court, who is of the judicial department: and when we go back to our constitutions and laws, in this state, from the beginning of the state government to the present, we find it has been the policy to distribute this appointing power among the several departments of the state . . . It may be true, that the governor has been invested with the greatest share of this power, but no principle or policy has been declared that the power inherently belongs to him. And we may remark that the fact that all our constitutions, in assigning appointive power of the governor, have specifically designated the particular officers to whom it applied, furnishes cogent argument that the people did not regard the power as necessarily or inherently belonging to him.’ Fox v. McDonald, 101 Ala. 51, 13 So. 416 (1893).
"Similarly the parallel development of judicial independence has been described. In his article, Separation of Powers: Judicial Independence, 35 Law & Contemp. Prob. 108 (1970), Senator Sam Ervin traces the development of judicial independence from Aristotle to Montesquieu, to the federal and state constitutions, and to the present era. His conclusions may be summarized in his language as follows:
"‘Judicial independence is the strongest safeguard against the exercise of tyrannical power by men who want to live above the law, rather than under it. The separation of powers concept as understood by the founding fathers assumed the existence of a judicial system free from outside influence of whatever kind and from whatever source, and further assumed that each individual judge would be free from coercion even from his own brethren.
"‘To my mind, an independent judiciary is perhaps the most essential characteristic of a free society. From long experience as a practicing attorney, a trial judge, an appellate judge, and now a legislator, I have had ample opportunity to observe and appreciate the safeguards embodied in the separation of powers doctrine so wisely formulated by our forefathers.'"
Morgan County Commission v. Powell, 292 Ala 300, 324, 293 So. 2d 830, 852-3 (Ala. 1974) (Heflin, C.J., dissenting).
Independence was the key; dependence on the legislature was the great evil. For some reason, they did not seem to think that independence could go too far to the other extreme, that our dependence as a citizenry would turn into inordinate trust in the judiciary, a sort of judicial idolatry. Whatever the court says is law is the law. How could they have been so blind?
Their trust was in the system they had set up. Their trust was in judges, who have no army, no weapons, no force, only the law on their side. Their trust was in the people, not royalty or those given the kingly duty of executing the laws, the executive department, which does have the force and the armies and the weapons to coerce. The judicial system seemed so safe, so weak, so trustworthy in its careful, written analysis of the law. But is it? Are ideas so safe that we don't have to worry about any manipulation of those ideas by the clever ones entrusted with interpreting the law?
Can any system devised by man avoid abuse? Can those entrusted with a large amount of power always be trusted with that power? Can we idolize and trust something, even an ingenious institutional document like the U.S. Constitutional system to the point that we have to be shown that there is no one trustworthy but God?
And what do we do about it now?
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