On this 4th of July America faces two grave threats to liberty. In the next weeks we will face extremism from both Al-Qaeda and from Congress regarding judicial nominations.
The proper response to first threat became apparent on September 11th, 2001.
President Bush responded to it in the spirit of Thomas Jefferson:
May [the Declaration of Independence] be to the world, what I believe it will be (to some parts sooner, to others later, but finally to all), the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government. That form which we have substituted, restores the free right to the unbounded exercise of reason and freedom of opinion. All eyes are opened, or opening, to the rights of man.
The second threat has a much longer history and an even more insidious progress. Jefferson also recognized this:
The internal effects of a mutable policy are […] calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow.
In the last few days this second danger has been made crystal clear by Supreme Court decisions regarding medical marijuana (6-Jun) eminent domain (23-Jun) and display of the 10 Commandments (27-Jun).
June 2005 is perhaps the worst month in our history for individual freedom.
In the first decision the commerce clause has been extended to your personal garden. In the second a part of the Bill of Rights has been destroyed. In the third, we’ve been handed an entirely arbitrary means to judge whether “Thou Shalt Not Steal” is a prohibited religious tenet or a simple moral imperative.
I think the proponents of medical marijuana have an “alternate agenda”. I also think – So what has that got to do with interstate commerce?
I think stealing property at the behest of a couple of developers and your local government is Stalinist.
I hold no brief for the specific religious origins of the 10 Commandments, but to deny their core contribution to our system of justice denies the history of Western Civilization.
SCOTUS has now ruled that the power of the Federal Government is more important than your rights in all these matters.
That, of course, isn’t what we asked of them, but it is where hundreds of years of practice and public deference have taken them. I’ve previously linked to Lee Harris at Tech Central Station – Can a People Have Too Much Respect for the Law? If you have not read it, please consider doing so now.
Harris perfectly anticipated Democrat House Minority leader Nancy Pelosi’s comment regarding the recent SCOTUS decision on eminent domain: “It is a decision of the Supreme Court. So this is almost as if God has spoken.”
Let us be clear, this was not a member of the Politburo speaking of Stalin’s inner circle, but a Congresswoman apparently intent upon turning a de facto oligarchy into a pagan theocracy.
In addition to her attempt last week to gather House support for forcing the President to declare a timetable for withdrawal from Iraq, Pelosi’s fatuous statement of awe shows how little she understands the Constitution or the founding principles of the United States.
She is only consistent in her opposition to principles defined by Jefferson and, in these examples, embodied by Bush. Unfortunately, she is not alone.
Aside from her approval of the specific usurpation of power the Supreme Court enabled by gutting the “takings” clause of the 5th Amendment, we must deal with the general disconnect between Ms. Pelosi and the people who actually wrote the Constitution about which she is so representatively ignorant.
The American people continue to loose fundamental freedoms because of the legal inventions of activist Supreme Court Justices – reverently supported by Pelosi and a Congressional majority occupying seats on both side of the aisle.
We’re on notice then, that we face the twin challenges of Islamic terrorism and of judicial activism; aided and abetted by Nancy Pelosi and her fellows.
Today’s runaway judiciary power originated in 1803, when the Supreme Court of the United States brought down a decision in Marbury vs. Madison (see also) determining for the first time, that it had the power to decide the constitutionality of congressional or executive branch actions.
When Thomas Jefferson faced this threat he did not dwell on the divinity of the Supreme Court:
“The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
—Thomas Jefferson to Abigail Adams, 1804.
“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
—Thomas Jefferson to William C. Jarvis, 1820.
“In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that ‘the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.’ If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
—Thomas Jefferson to Spencer Roane, 1819
“This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”
—Thomas Jefferson to Edward Livingston, 1825.
Finally, we can hear Fredrich Hayek’s understanding of the principles Ms. Pelosi so blithely abandons in her Supreme rapture. Hayek wrote extensively to oppose the rise of central government control after WWII. He understood the basic moral underpinnings that allow liberty to endure:
-The system of private property is the most important guaranty of freedom, not only for those who own property, but scarcely less for those who do not.
-I am certain that nothing has done so much to destroy the juridical safeguards of individual freedom as the striving after this mirage of social justice.
-It used to be the boast of free men that, so long as they kept within the bounds of the known law, there was no need to ask anybody’s permission or to obey anybody’s orders. It is doubtful whether any of us can make this claim today.
Have a happy 4th of July by remembering those who brought it to you – from Thomas Jefferson to our troops around the world fighting against the death of reason: Nancy Pelosi’s secular “diety” notwithstanding.