Help – I’m being ruled by Anthony Kennedy! Or at least I was, until he retired last year. Which begs the question: who will be the next Supreme Court Justice to play social engineer? And why should we – as a self-governing people – have to put up with it?
Anthony Kennedy wrote the majority opinion in the Obergefell case in which he declared same-sex marriage a fundamental right under the Due Process clause of the 14th Amendment, and state laws against same-sex marriage a violation of Equal Protection, also under the 14th Amendment. This was social engineering, pure and simple. He had a vision of the perfect society and declared it from the top down, instead of waiting for genuine organic social change from the bottom up. Obergefell is not the only example of his social engineering. Remember his theory of ‘unconscious bias’, which has been debunked? According to Anthony Kennedy, we must all be prevented from exhibiting prejudices we don’t even know we have. Kennedy used that theory in a 2015 case to allow housing discrimination claims based on population statistics, without any showing of discriminatory intent, thus opening the door to requiring subsidized housing in his ideal locations. More top-down, cram-down social engineering from the former Justice Anthony Kennedy.
How did we get to this place, where Supreme Court Justices come to think of themselves as ‘engineers of human souls’, as Stalin put it, enlightened beings whose job it is to ram their vision of a perfect society down our throats?
The answer is there’s a hole in the Constitution. The text of the U.S. Constitution is silent on the question of who gets to decide constitutional questions, short of constitutional amendment. Our system was dramatically changed when the Supreme Court arrogated to itself the power to declare statutes unconstitutional in Marbury v. Madison in 1803. This is euphemistically called ‘judicial review’.
It doesn’t make any sense to me that nine unelected judges – or five who make up a majority of the Supreme Court – or a single swing Justice like Anthony Kennedy – get the final say on constitutional questions in a constitutional Republic where the people are supposed to be sovereign. Why should nine unelected masterminds get to decide what are fundamental rights for the entire country, and what are not? This is not the Rule of Law; it’s the rule of the subjective opinion of the tiniest of elites.
I propose a constitutional amendment to allow a super-majority of state legislatures to overrule decisions of the Supreme Court on constitutional questions. Why state legislatures? Because of all the institutions we have, state legislatures seem to me to be the closest to the people. They are the best expression of popular sovereignty that our Republic has. The idea for this amendment is not original with me. Mark Levin proposed it in his book The Liberty Amendments in 2013 [p. 211].
Some will argue that judicial review is a good thing and point to the fact that Alexander Hamilton wrote in favor of it in the Federalist Papers, No. 78. However, Hamilton predicted a judiciary that would remain weak, calling it the “least dangerous” branch. Hamilton wrote that the judicial branch is not in control of the military or the purse strings. It has no real power to enforce its judgments, and thus could never become a major threat to the liberty of the people. Courts would never become arbitrary because they would be bound by rules and precedents.
Well, things didn’t work out that way, did they? Since Marbury, the Supreme Court has uttered its pronouncements and, with few exceptions, the rest of us fall in line. Now the Court is making stuff up, like fundamental rights out of thin air, regardless of precedent. This was all foreseen by the Anti-Federalist Brutus who wrote that, with unchecked judicial review, judges would substitute their will for the plain text of the Constitution:
It’s time We the People reclaim our sovereignty. This year, I begin exploring the fine points of what I call the ‘popular sovereignty amendment’ and what it would take to put the idea before the American people. Your comments and suggestions are welcome. Let’s reinvigorate the amendment process and have a full discussion of who should be running the show.
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