Spence Publishing, 2004.
One can hardly think of a better author to take on the judicial activists. Phyllis Schlafly has been a dogged defender of freedom, and the matriarch of pro-family activism for four decades now. Both as a mother and a lawyer, she is well qualified to speak on how the tyranny of the courts is stamping out our freedoms and laying siege to our families.
Her thesis is simple. For the past fifty years liberal judges have moved beyond the strict interpretation of law to the creation of law. They have become legislators, and have sought to impose their leftist bias on the rest of the community. The rule of law has thus been replaced by the rule of judges: judges who are unelected and unaccountable, foisting their vision of the good society on a hapless citizenry.
Instead of viewing the US Constitution as a document that meant certain things by its authors, the activists speak of a “living and evolving Constitution” that can be taken to mean different things at different times. The original intent of the framers of the Constitution is jettisoned and trendy interpretations are read into the documents. The judges in fact are writing their own biased opinions into the law.
But the American system of government was meant to include a clear separation of powers. In addition to the judiciary, there was the legislative and the executive wings of government. Not only was the judiciary not meant to be in the business of creating laws, but it was also designed to be the least powerful of the three branches of government. Schlafly shows that in many ways it now has become the most powerful.
Indeed, this book shows that our judges have imposed taxes, dismantled laws that protect internal security, rewritten laws on the conduct of elections, and redefined the institution of marriage, to name but a few examples of judicial activism.
Moreover, they have invented so-called rights to such things as abortion, same-sex marriage, and public funding of pornography. As Schlafly rightly notes, such social and political policies should be made by our elected representatives, and not by our unelected judges.
Schlafly documents how this momentous change to our governance has come about. She notes that the infamous Dred Scott decision of 1857 really started the ball rolling on judicial tyranny. The Supreme Court made this pro-slavery decision by striking down a Federal law which forbade slavery in certain parts of America. Abraham Lincoln, the champion of emancipation, was appalled at the decision, and the attempt by the Court to make public policy.
Nearly one hundred years went by before a new bout of judicial activism erupted, this time under the Warren Court. Chief Justice Earl Warren wasted no time in asserting judicial supremacy, with a number of established laws overturned, and controversial social upheaval initiated, as in his challenges to school prayer and obscenity laws. The trends started by Warren have pretty much continued unabated during the past five decades.
Schlafly charts this half century of activism, with detailed chapters on such things as the courts’ promotion of feminism, pornography, and its all-out assault on the institution of marriage. Concerning the latter, this book makes clear that both liberal judges and homosexual activists know that their agenda will never be implemented by the ballot box. The will of the people must be side-stepped by the use of judicial activism. Thus the war against marriage that we are now embroiled in.
In addition to various state judiciaries rejecting the will of the people on the marriage debate, the federal courts as well have waded into these debates. Justice Scalia has bemoaned the activism of his colleagues, saying they are making the Constitution and the nation unrecognisable.
Schlafly reminds us that homosexuals can marry just as anyone else can, but on the same terms. Everyone is equally banned from marriage because of certain age, relationship, and sex requirements. The truth is, most homosexuals do not want marriage. What they do want is full public acceptance and approval, and they are using the activist courts to achieve their aims.
Schlafly concludes this volume by offering some proposals to stop the judicial supremacists. These include allowing Congress to take its impeachment powers seriously, and to work to restore the balance of powers with its system of checks and balances. Above all, ordinary citizens must take an interest in the courts and court decision, becoming informed on how America was meant to be governed. They must become involved, and raise their voices about these unwelcome trends.
And this book serves as an important rallying cry to that end. In order for “we the people” to be truly sovereign, the warnings of this book need to be widely declared and heeded.