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judicial branchPopular support for the Constitution as a mechanism capable of securing the blessings of liberty for all is on the decline. Frankly, each of our three branches of government has played a role in eroding the Constitution’s ability to maintain a nation conceived in liberty.

Words like “arrogance,” “undermine,” “assault,” “trample,” even “usurp” are routinely employed by partisans on the right and left to describe a systematic approach by those in power to transform America’s constitutional order.

But the judicial branch has a particularly vital function of securing the balance of powers necessary for liberty to triumph, and so that branch’s propensity to overreach and simply dictate new law has led to an imbalance in the system as designed. The result is a broken constitutional framework for American democracy. And what has emerged is a new pattern of government. It is the judges who rule us now. It is the Supreme Court, and not the consent of the people expressed through their elected representatives, that more often than not decides our most fundamental political questions.

The long history of power in practice teaches us that governing bodies tend to be unable to restrain themselves. Thomas Jefferson wrote that, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” He was reacting to the passage of the Alien and Sedition Acts, one of our early constitutional controversies. The “chains” represented by the Constitution were designed to restrain the power of elected and unelected federal officials.

The U.S. Constitution is extraordinary in part due to its exceptional lifespan. It is the first modern constitution and it has outlived most of its successors. But history has demonstrated that when constitutional interpretation is the wholly owned province of the federal government, then federal courts will read into the Constitution reasons for ever-expanding federal power. Those courts will discover in the text (or in its “penumbra”) new powers and in so doing render the document essentially meaningless.

For most of our history law and morality have been tethered together. However, cases in recent years on abortion, euthanasia, and homosexual rights have aimed straight for the heart of the moral law.

In case after case, traditional morality has been the victim of a hostile judicial coup separating law from morals and making religion not the bulwark of our freedoms so much as the state’s declared enemy. An expansive conception of the equal protection of the laws is now routinely pitted against religion, what Alexis de Tocqueville referred to as the “first political institution” of American democracy.

Developments like these have led conservative critics of judicial activism such as Robert Bork to assert that the Supreme Court now brings “home to us with fresh clarity what it means to be ruled by an oligarchy.”

Sometimes even Supreme Court justices join the alarmed chorus. Antonin Scalia, for one, has openly wondered, “What secret knowledge…is breathed into lawyers when they become justices of the court?”

The prevailing idea that ours is a “living constitution,” adjusted to the times and elastic in meaning, is not serving us well. But a truly living constitution is a spirit of liberty and limited government that lives in the hearts of the people. Its health is sustained by a balance of power between the national government and the states, as well as between the three branches of government.

Conservatives and liberals would do well to work together to reinstill popular confidence in our Constitution, still very much a model for a limited, republican government.

More effective and imaginative civics education at all levels, combined with attention to the necessary pre-conditions of liberty, will certainly help citizens come alive to their constitutional birthright. This will in turn invigorate the Constitution, and aid in restoring America’s timeless framework of freedom.

Books related to the topic of this essay may be found at The Imaginative Conservative Bookstore.

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Published: Sep 21, 2012
Jeffrey O. Nelson
Jeff Nelson is Executive Vice President for the Intercollegiate Studies Institute. He holds a B.A. from the University of Detroit, an M.A. from Yale University Divinity School, and a Ph.D. in American history from the University of Edinburgh in Scotland. Prior to returning to ISI in 2009, he was president of the Thomas More College of Liberal Arts. Dr. Nelson serves as vice chairman of the Russell Kirk Center for Cultural Renewal and secretary of the Edmund Burke Society of America. He is the editor of several books, including "Redeeming the Time" by Russell Kirk, "American Conservatism: An Encyclopedia", "The Political Principles of Robert Taft" by Russell Kirk and James McClellan, "Perfect Sowing" by Henry Regnery, and "Remembered Past" by John Lukacs.
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2 replies to this post
  1. The author's main point in this well-written and much appreciated article — that we have recently seen an alarming increase in the use of the Supreme Court to make law, and that this does violence to the Constitution — is clearly very important.

    Paragraphs 6 and 7, however, raise what appears to be a separate issue — that of moral law. In particular, the article states that "cases on … homosexual rights have aimed straight for the heart of the moral law."

    I, for one, would most definitely agree that recent efforts to use court rulings to establish a "right" to homosexual marriage rely on a dangerous attempt to redefine the meaning of the word "right". And that any attempts by courts to institutionalize such marriage on the pretext of Constitutional protection of rights amounts to judicial usurpation of Congressional powers. But that is an issue of abuse of definitions and of clear reasoning — not an issue of religion or traditional morality per se.

    Moreover, who defines "traditional" here? We can find varying degrees of tolerance or acceptance of homosexuality as far back as history records. And despite a few ambiguous statements of St. Paul relating to the subject, the Gospels themselves are silent on it.

    As the author wisely suggests, conservatives and liberals would do well to work together to oppose the serious evil of judicial law-making. To that end (i.e., coalition building), I think the Constitutional issue, i.e., that of maintaining checks and balances, ought to be kept separate from divisive and more debatable issues of sexual behavior and of what does or not constitute traditional morality.

    I believe the conservative movement would be well served by keeping these issues distinct, and by not giving ammunition to critics who would seek to discredit the movement with the charge of homophobia.

  2. Reading Jeff Nelson is always a treat.

    A problem, perhaps, is that judicial activism seeks victories unwillable at the polls, which is why it is used to shoe-horn in so much Progressivism. The answer may lay in a lack of conservative vigilance; or as with media, these areas attract ideologues and cod-visionaries who would be less interested than normal people in careers in commerce, the church and community.

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