January 13, 2004
Judicial review was originally proposed (most
notably in Federalist No. 78) as a method of making sure legislatures
didnt pass unconstitutional laws. Today it has become a method of
changing the very meaning of constitutions under the guise of interpreting
The problem was highlighted this
past November, when the supreme court of Massachusetts handed down the
sensational ruling that the states constitution required that
same-sex marriage be recognized in law. The court
didnt even bother citing any specific passage of the constitution
that might be construed to mean this; obviously it couldnt find one.
It just decided to do the progressive thing, regardless of
The court knew, of course, that
this controversial fiat would find support in the unbiased liberal media,
where the trendy is always equated with constitutional
rights, and where the universal understanding of words is
subject to sudden change. Throughout human history, terms like
marriage, marital, conjugal, connubial, and
spousal could only refer to unions of the opposite or, more
precisely, complementary sexes.
As for judicial review, it was
for many years hardly used at all. It existed more in principle and in
theory than in practice, even after Chief Justice John Marshall asserted it
as a power of the courts. The first notable instance of it was the 1857
Dred Scott decision, which Abraham Lincoln denounced as a threat to
After the Civil War the U.S.
Supreme Court exercised judicial review with more frequency to strike
down state and Federal laws it deemed contrary to the U.S. Constitution.
During Franklin Roosevelts presidency, the Court declared much
New Deal legislation unconstitutional, and the enraged president tried to
pack the Court with new justices; even his own party was
horrified, and the effort failed. Still, Roosevelt finally managed to shape
the Court to his will by appointing party hacks whenever vacancies
occurred. The Court, as a result, became more liberal and
But the great change began to occur in 1954, when the
Court, in Brown v. Board of Education, ruled that racial segregation
in state schools violated the Fourteenth Amendment. Though this was a
very questionable decision on constitutional grounds, liberals applauded
the result, and segregation was so disreputable outside the South that few
outside Dixie really objected.
With this triumph the Supreme
Court led by Chief Justice Earl Warren, a Republican appointee
vaulted to a new and powerful role in American life. Liberals
looked with favor on the Courts broad construction
of the Constitution, not only on racial issues but on many others:
censorship, public school prayer, legislative districting. They soon
realized that an aggressive judiciary could be a shortcut to achieving
their agenda without the bother of getting it past voters and legislatures.
Thanks to the Federal judiciary,
liberals could win victories even when they lost elections! The power of
the courts was enormously increased. Some conservatives called for
Warrens impeachment, but the media treated this as a joke, and
most of the country acquiesced to the Supreme Courts new muscle,
even though it meant a degree of arbitrary power that alarmed even some
thoughtful liberals. To a great extent, government by
judiciary replaced self-government.
And so it has been ever since,
most notably in Roe v. Wade, when the Court suddenly
discovered that the trendy cause of legal abortion was
guaranteed by the Constitution and struck down the abortion laws of all
50 states. Again, the Courts reasoning was feeble; but again,
liberals liked the results and, as usual, the unbiased liberal media
provided supportive propaganda.
It all started with Brown
or rather, with a willingness to tolerate dubious constitutional
reasoning for the sake of getting desired results. Since 1954, judicial
review has come to mean liberal tyranny, as liberal courts have imposed
their arbitrary will. Naturally, liberals love this arrangement, and as they
lose elections they fight tooth and nail to retain their judicial stronghold.
After all, judges are appointed for life and dont have to face the
voters, no matter what they do.
All this could have been avoided
long ago if Earl Warren and his colleagues had been impeached for usurping
power. The absurd ruling of the Massachusetts court is just the latest
bitter fruit of the total perversion of judicial review. And only
impeachment will teach the rogue judiciary that its place is below, not
above, state and Federal constitutions.