Everyone can see that a person appointed for life as a judge does not represent a constituency. There's a reason for that. The judge must stand for the law and only the law. Justice, only Justice, shall you pursue. Leviticus 19:15.
A king is more democratic than a court because if a king is willing, the lowliest peasant can approach the king and petition him to not enact an evil law. Not so the courts, which are forbidden in principle from such outside influence so that it may protect the interests of the the parties before it. This is not a criticism. The courts must have independence from outside influence in order to hear the arguments and evidence of the parties before it and make a judgment based on justice alone. Because of this need for independence in the courts and the protection of the parties before it in the Obergefell case on marriage, it was improper for anyone else in the entire country (unless they were granted amicus curiae status) to petition Justice Kennedy and the other Supreme Court Justices for them to respect marriage and the laws of the states. We, the people, were forbidden from interfering with that process. Thus, the courts are the most undemocratic of the three branches of government – by design.
Therefore, the question arises as to whether a Court should even address such policy questions at all. Not many people know that the Constitution of the United States does not even give that authority to the U.S. Supreme Court. It gave that power to itself. How? In an opinion it issued, of course. It occurred early in our history - the 1803 decision in Marbury v. Madison.
However, the problems are compounded in our day. As the opinions as to right and wrong change seemingly every day, and each person, educational system, or region of the country, develops its own value system, the choices allowed by liberty grow. As liberty grows in the society, the choices a President can make as to federal judges grow also. As the federal government grows in power extending its tentacles throughout the society, the more likely that a value judgment by an individual sitting on the U.S. Supreme Court will butt up against the viewpoints, choices, and laws of another part of the country. With no objective standard of right and wrong, there’s no telling what moral values a Justice may have when appointed to the U.S. Supreme Court. Add the mistaken idea that much of the legal community has adopted – that the Constitution forbids any religious influence whatsoever upon a court’s decision, and the Court becomes absolutely hostile to objective good and evil as defined by God. It gets worse.
Add to that system, the idea that all must obey the U.S. Supreme Court’s opinions, no matter how far beyond the boundary of law and constitution, and we have conferred upon it the incommunicable attributes of infallibility and absolute obedience, the prerogatives of God alone. A king can change his mind if he sees he has made a mistake and rescind an order fairly easily. Our courts have become something like the legal system of the Medes and Persians, for whom the law once declared by the king couldn’t be changed by anyone, even the king. (Remember the story of Daniel and the lions’ den, when he disobeyed the king.)
Take the homosexual issue. Once the U.S. Supreme Court constitutionalized that issue for itself to decide for the states what is right or wrong, thereby reversing its own prior opinion (Bowers v Hardwick, 1986, when it said the states decided the question of the criminality of consensual homosexual activity), as it did in Lawrence v Texas, 2003, it can not go back and re-reverse itself by un-constitutionalizing the issue. If it did, it would look even sillier. It might change an opinion as to a result in a case, but we’re stuck with the decision to constitutionalize. The U.S. Constitution has now been interpreted to impose on every state a foreign version of law and federalism, and it is forever enshrined as what the Constitution means for all and for all time. It’s like the law of the Medes and Persians in Daniel’s day, when once the King issued a decree, even he couldn’t reverse it. But it wasn't a king's decision or a legislature's or the Congress' or the people's. It was five judges. And they forever denied the people the right to speak on the issue.
I haven’t even gotten to the Tenth Amendment. Need I explain that the issues which the U.S. Constitution doesn’t address are left to the states and to the people? This one portion of the Constitution is enough to show that the U.S. Supreme Court went beyond its boundary as a court to invent a new form of marriage entirely, equate it with the only form of marriage we had ever known in Alabama and which is a fundamental right, then cram it down our throat by constitutionalizing the issue in defiance of the Tenth Amendment. Apparently, even the U.S. Constitution cannot restrain judges who are intent upon using the Constitution to advance their personal agenda.
Some will argue that the people can now change the Constitution by amendment. Wait a minute. How is it that one group, those in favor of changing the definition of marriage contrary to the Constitution and the will of the people, don't have to go to the trouble of getting three fourths of the states to agree with them but get to have five unelected judges rule in their favor? Yet, those who stand for the original meaning of the Constitution and the right of the people to keep their rights pursuant to the Tenth Amendment have to get three fourths of the states to vote to amend the Constitution to say what it already says?
One state should be able to pass laws on an issue in the way the people of that state desire and that affect it without having to get 36 other states to go along with it. That is part of the American foundation - locals getting to govern themselves, self-government. A court ruling for the entire country on an issue it lacks authority denies the very nature of the American system, its purpose, and the U.S. Constitution when it defies the people so blatantly.
Therefore, a constitutional amendment, say, allowing states to define marriage as they see fit, cannot fix the problem. Even if such an amendment were to pass in the future, it cannot fix that systemic, foundational error that has become so common in modern America - a federal court ruling "ultra vires" (beyond its legitimate authority) that a state law or federal law is unconstitutional. What issue will the "High Court" rule on next that undoes the constitutional system so radically and thoroughly? Do we need a constitutional amendment ratified by 37 states every time it perverts our governing system? What a broken system!
We have a high Court full of highly educated legal professionals who are bound by no God and are content to impose their view of morality and law upon the rest of us without any constraints beyond their ability to contort the words of the Constitution to fit their personal agenda. More removed from the people than a king and immune from removal from office except for the most notorious of crimes. This is a serious problem.
The authors did not address this problem in detail because they considered the judicial branch, which has no army, the least dangerous. As Alexander Hamilton wrote of the Court in Federalist 78: “It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Its legitimacy is based on its ability to convince us that, in fact, its rulings are based on the U.S. Constitution. It lost that legitimacy that long ago.
In their attempt to justify avoiding the limitations of the Constitution, Supreme Court Justices have even gone to the extent of relying upon other nations' laws and international law. See comments by Justices Ginsburg, O'Connor, Kennedy, and others regarding using other nations' laws. We have reached such a perverse condition in this country that the Justices on the U.S. Supreme Court completely ignore the U.S. Constitution, the votes of the people, and the laws of the states, but they rely upon the laws of other countries and the kookiest new idea to come down the pike. Somewhere, the American dream of representative government went off the rails, and it is nowhere better represented than in the American judicial system.
The question we must answer (which has already been answered for us in the opinions issued) is whether the U.S. Supreme Court can violate the U.S. Constitution with its opinions. I say, "Of course, it can." But what's the solution?
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