Oct. 28, 2010
Today is the 223rd anniversary of the publication of the first of what became known as The Federalist Papers. Alexander Hamilton, James Madison, and John Jay, intellectual luminaries whose brilliance shines across the years, produced 85 treatises on the newly-proposed Constitution.
The Federalist Papers were designed to persuade their fellow citizens that a Constitution that defines, empowers and constrains the federal government was worth enacting. They succeeded in their project.
In our time, we are confronted by judges who believe the Constitution is not the carefully crafted text the Founders gave us but, rather, political putty onto which they can impress their personal beliefs and political vision. As Thomas Jefferson predicted, the Constitution has become, for those believe in legislating while presiding in a court, “a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please.”
Defenders of the activist courts claim that those who wish to constrain judicial overreach want to erode the independence of the judiciary. To the contrary:
- When a judge overturns the result of a state ballot election vote declaring what we have always known - that marriage is between a man and a woman;
- When a judge says that the National Day of Prayer is unconstitutional;
- When a judge believes she has the expertise to scrub multiple academic studies, not to mention the whole history of the Armed Forces’ warrior culture, in order to declare that military service for homosexuals is a “right,” and;
- When a panel of judges declares that same-sex marriage is a constitutional “right,”
those rejecting the right of judges to make such rulings are attacking not an independent judiciary but that judiciary’s willful rejection of that which it is sworn to uphold, the Constitution itself.
An independent judiciary does not mean judges should be untethered from the nation’s charter text, becoming laws unto themselves, legislating at will through the vehicle of judicial edicts. It means that when a judge or panel of judges rules consistent with the original meaning of the Constitution, they should not be bullied into unconstitutional jurisprudence. This is why federal judges have lifetime appointments; from the early days of the Republic, such appointments have been viewed as safeguards against political pressure.
In our time, many judges have become bullies, insistent on imposing their will upon our system of representative self-government and the people themselves. Thus, Justice Scalia’s assertion that the Constitution “means what it meant when it was written” is a shocking, retrograde, near-barbaric affront.
With the men who gave us The Federalist Papers, let us stand for an independent judiciary —- independent from political shoving and pulling, but never independent from that which gives the judges themselves the right and power to serve: The Constitution.