Diary

Judicial Activism and the Polarization of America

**America was never intended to be a nation where everyone in every state shared the same values. The original colonies had their own distinct cultures, religions, and traditions, and they wanted to make certain that those were preserved before they agreed to enter the national union. That’s what federalism is; that’s why the 10th amendment is in the constitution. But federalism and local government has been destroyed by the appointed judges of the federal judiciary.

The Warren Court was absolutely right in its cases dealing with racial discrimination, such as Brown v. Board of Education. These were firmly grounded in the 13th amendment’s prohibition on slavery. This applied to all the states because it was part of the federal constitution. But the Supreme Court became intoxicated with the power of its constitutional holdings and blatantly ignored the constitution by venturing into public policy questions strictly reserved to the states by the 10th amendment.

Roe v. Wade was such a case. Although it had no express power to do so, and although all powers not specifically vested in the federal government were expressly reserved to the states by the 10th amendment, the U.S. Supreme Court in Roe held that state laws prohibiting abortion were unconstitutional, basing this holding on a “penumbra” (i.e., unspoken and invisible) right of sexual privacy that derived from an equally specious case where it held that Connecticut could not prohibit the sale of condoms. These decisions appear complex and very, very learned, but their complexity is nothing but a smokescreen to conceal their basic illegality. The supreme court simply did not have the authority to apply the constitution in such an absurdly broad way; the judges knew it, so they couched their opinions in complicated language and Byzantine analysis expressly designed to prevent the average person from realizing that taffy was being distributed.

The result was an enormous, unconstitutional shift in power. The checks and balances of the constitution were catastrophically altered. Congress did not object because the usurpation of legislative power by the supreme court relieved individual congressmen of the responsibility for making difficult decisions on heated issues, and from the repercussions that inevitably follow from taking a controversial stand. Freed from their responsibility to legislate, congressman could concentrate on advancing their self-interest and careers. Many congressman did so, resulting in unparalleled corruption and cronyism that affected both political parties.

The citizens of the United States instinctively understood that the balance of power had changed. Local elections for congressional representatives and senators became relatively insignificant because the crucial decisions would not be made by Congress: they would be made by supreme court justices, most of them elderly and urban in their outlook, who would not be elected by anyone but would instead be appointed by the President of the United States. The overriding issue in presidential elections became, and remains: Who will appoint the supreme court justices who, more than anyone, will decide questions of public policy binding on the entire nation?

This usurpation of legislative power by the federal judiciary is the cause of the sharp and acrimonious divisions in America today, because it destroyed the federalism on which the nation was founded. When every significant issue is held to be governed by the federal constitution, there is no room for local government. The protection that the constitution provided local and regional religions, tradition, and values was swept away by an elite federal judiciary that was determined to homogenize America and impose its own elite, urban beliefs and values upon the entire nation. As a consequence, we live in a nation where is no room for rural culture or small-town values.

Democrats often speak of “choice” and “freedom,” but there is no room for choice or freedom in their world. Many states allowed abortion before Roe v. Wade was decided. The people of America could then decide whether or not they wished to live in a community that permitted abortion and infanticide. Roe v. Wade removed that choice and imposed the ethics of urban cultural elites upon millions of Americans who were repelled by those ethics. It still does. Other pronouncements of the United States Supreme Court on topics ranging from establishment of religion to criminal procedure likewise impose the ethics of the cosmopolitan elite on a majority of Americans who vehemently disagree. And it cannot seriously be argued that those who disagree are not the majority: if it were otherwise, it would have been unnecessary to impose the culture of the urban elites upon the rest of America: Americans would simply have adopted these changes themselves, through local legislation, as the constitution envisioned.

America need not be divided into two hostile camps. We can coexist despite differences of opinion, even on crucial issues, if there is mutual respect and tolerance of local and regional differences. But imposing alien values on a majority who strongly hold different beliefs is nether tolerant nor respectful. It is the road to national disintegration, and we have been on that road for a long time. I believe that Mr. McCain and Gov. Palin understand that this is the crucial challenge of our time, and that they have the integrity, ability, and courage to produce change that will allow us to again live as a united people.