02 Oct The Genesis of Judicial Activism
From the Desk of Laura Bunker:
Three months ago the U.S. Supreme Court ruled in U.S. v. Windsor that same-sex marriages are entitled to receive federal benefits if they live in a state where same-sex marriage is recognized. This sweeping ruling opened up storm clouds of litigation across the country. In the words of one lawyer, “It’s raining lawsuits.”
For example, lawsuits pushing for same-sex marriage are ongoing and increasing in in Hawaii, Illinois, Michigan, New Jersey, New Mexico, Nevada, North Carolina, and Utah.
Then last Friday, Judge Mary Jacobson became the first judge in the U.S. to cite the Supreme Court’s Windsor decision in her ruling that ordered the state of New Jersey to allow same-sex marriage beginning on October 21. Judge Jacobson wrote, “The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts.” New Jersey Governor Chris Christie has asked for a “stay” to delay same-sex marriage in his state until an appeal can be decided.
The Supreme Court’s far-reaching Windsor decision has unleashed a legal storm across the nation, and as UFI’s Tom Christensen explains in this week’s alert, this is not the first time the Supreme Court has overstepped its bounds.
Faithfully for Families,
President, United Families International
The Genesis of Judicial Activism
If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, … the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal. –Abraham Lincoln
By Tom Christensen
Last month, I wrote a criticism of US v. Windsor, the latest attempt of the US Supreme Court to seize the role of the People’s Congress, and, in this case, eliminate legal preferences in support of the traditional family. Without a contested Case or Controversy, the Court in Windsor brazenly overturned the Defense of Marriage Act (“DOMA”) and mandated the extension of federal entitlements to lawfully married same sex partners.
Windsor is not the first time the Supreme Court has attempted to solve controversial moral or political questions reserved under Article I of the Constitution to Congress. Starting with the infamous case, Dred Scott v. Sandford, 60 US 393 (1857), the Court has a long and embarrassing history of abstract moralizing and outright ignorance on such crucial questions as slavery, racial segregation, protection of the unborn, and the sanctity of marriage.
In today’s alert, I will retrace the sordid origins of judicial activism and describe how the Court’s more recent pronouncements have seriously damaged the family.
Racial Discrimination Cases
In Dred Scott, the Supreme Court adopted the blanket policy, in the words of Chief Justice Taney, who wrote the majority opinion, that blacks are:
“beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.
Dred Scott proved that legal training does not qualify a panel of judges to decide the controversial moral or political questions of the day.”
Dred Scott provoked retaliation among abolitionists followed by eventual secession of the southern states. To end slavery, it took the election of a remarkable President named Lincoln, civil war (involving the slaughter of 700,000 American soldiers, leaving the American economy and countless cities and villages in ruins), and the ratification of the 13th Amendment. The country paid quite a price for the Court’s first experiment with “substantive due process.”
Unfortunately, the Court’s ill advised policy of judicial activism in race relations cases did not end with Dred Scott. Forty years later, the Court, again with no constitutional basis, set the country back when it affirmed the separate but equal doctrine justifying segregation in Plessy v. Ferguson , (1896). Plessy stood as the law of the land for seventy years until a new Court finally reversed the Court’s ridiculous precedent in Brown v. Board of Education (1954).
The Court continued to harm race relations in a series of racial preference cases (designed to achieve “racial diversity”) commencing with Bakke in 1978. Chief Justice Roberts writing for the majority in Parents Involved v. Seattle School District (2007) finally saw the light when he concluded that “the way to stop discrimination on the basis of race is to stop discrimination on the basis of race.”
A break in negative race relations finally occurred when Congress adopted the Civil Rights Act of 1964, comprehensively addressing racial, ethnic, national, religious, and gender prejudice. As demonstrated by the race cases, the founders were wise to entrust the legislative power to the people through their elected representatives rather than an unelected, rogue Supreme Court.
If the Court at the time of Dred Scott had exercised a little judicial restraint or simply applied the Constitution consistent with a reasonable reading of the Declaration of Independence (“all men are created equal and endowed by their Creator with certain unalienable rights”), perhaps Congress could have averted civil war and ended racial discrimination through proper legislative mean, as has been the case in all other civilized nations.
Today, the Court uses phony controversies and faulty judicial precedent to justify rulings on virtually every statute or political question vexing the nation. Defenders of the Court justify this power grab on the basis that the Constitution is a “living” rather than a “static” document that must be updated frequently by the Court. However, each time a new activist justice is appointed, or a swing vote swings, the power of the people to set their own laws and determine their nation’s future is undermined.
The Supreme Court first took on the issue of marriage and human sexuality in the 1972 case, Eisenstadt v. Baird. This time the Court legislated a new sexual right for singles, ruling that states could not restrict the sale of contraceptives to unmarried people. Based on its invention of the so called “penumbral” (meaning in the “shadows” of the Constitution) right of privacy, the Court restricted the power of the states to help ensure that future generations enjoy the advantages of being raised by both a mother and a father. This so-called penumbral rights analysis became the rationalization for the Court to establish other rights not found in the Constitution, such as the right of a woman to kill her unborn.
A family commentator I know and admire, Patrick Fagan, described the fallout of Eisenstadt and Roe v. Wade:
“In a well-ordered society, sex and marriage go together exclusively, because the union of male and female sexual expression must be undertaken in a union that binds them in advance of the coordinated labors needed to raise the children they may bring into the world. To achieve this, a functioning society demands that each citizen channels his sexual capacities in ways appropriate to these two tasks (procreation and childraising). That is, it demands marriage…
With Eisenstadt, the Court dismissed marriage as the basic institution for begetting and raising children, and in a couple of pages of writing, rendered obsolete the experience of millennia. Prior to that time, those who intended to raise children together were expected by tradition, common sense, and culture to marry first. The law protected these expectations…
Post-Eisenstadt, many social policies were quickly abused as many young women learned how to game the system. Policies such as welfare payments, food stamps, and housing, all designed to help the family and society by subsidizing a mother’s physical needs on a per child basis, ultimately undermine these families by not requiring marriage as a condition of support.
Tragically, at this point in our history, almost all of these children and grandchildren cannot conceive of any other family life except single parenthood combined with serial cohabitation. Instead of intact, married families, we have matriarchal lines of poverty and strain, with men and fathers cast outside, somewhere…
We are coming up on fourth-generation fatherless families begotten since Eisenstadt, as many inner-city families start when a 16-year-old girl becomes a mother. These families produce boys who have little chance of becoming men. Indeed, each successive generation is less capable than the one preceding it. Worst still…the current norm in their home is a new man in the mother’s bed every 18 months.
Having set chaos in motion in Eisenstadt, the Supreme Court quickly built the garbage bin for dumping sexual debris in Roe v. Wade, which gave a green light to the killing of 55 million unborn children, the overwhelming majority of whom were conceived by those unmarried singles with new access to contraceptives…” (The Public Discourse, March 2013)
The Supreme Court in Windsor had the chance to correct Eisenstadt, as it did when it reversed its segregation policies in Brown. Instead, the Windsor Court affirmed Eisenstadt, redefined marriage, reviled Congress for reinforcing traditional marriage, and thus weakened the institution of society so essential to public morals, prosperity, and survival.
Does any bad decision of the Court rival Dred Scott? According to Fagan,” future generations may rank this [Eisenstadt] as the single most destructive decision in the history of the court.”
Next Month: What Can be Done to Reverse the Damage of Eisenstadt, Roe, and Windsor?
Tom Christensen, former CEO of United Families, is a successful father, attorney, and politician. He has written extensively on the natural family and has addressed UN delegations in behalf of UFI in Istanbul, New York, Nairobi, the