With the success of Mark Levin’s book “Men In Black: How the Supreme Court Is Destroying America,” and recent rulings by the Supreme Court of the United States, or SCOTUS, I thought I would throw in my two cents on this issue. I have not read Mr. Levin’s book so I do not know if I will be repeating anything that is already discussed in it. As a recent political science graduate, I have had some insight into and studied this issue, although I am by no means an expert on the subject.

The best insight actually comes from a criminology class I took. As long as I live, I will never forget what the teacher actually admitted. He said that science may not get it right all the time or have it right at any given time, but it eventually gets it right. My question to any scientist then is how exactly do you know when you have it right if you think you have it right all the time but admit that you don’t know for sure (These are the same people who call Christians misinformed).

There are so many examples of this very concept from the SCOTUS: Plessy v Ferguson, Scott v. Sanford, Bradwell v. Illinois, and Roe v. Wade, to name a few. In each instance they thought they had it right. They must also think they have it right when they turn something that is not even in the Constitution, such as the “right to privacy,” into what they call a fundamental right and they take something that is clearly stated in the Constitution, such as the right to bear arms from the Second Amendment, not the eighth, ninth or tenth, but the second, and turn it into what they call non-fundamental right

The Founding Fathers were rather brilliant in the way they set up America’s system of government. They set up the three branches of government, the executive, the legislative and the judicial to have a system of checks and balances, a separation of powers. The people elect Congress and the president. The president nominates judges, while the Congress approves the nomination. The framers of the United States Constitution most certainly did not give the courts a political role. The strict constructionist approach holds that judges should confine themselves to applying those rules that are stated in or clearly implied by the language of the Constitution. While the activist approach argues that judges should discover the general principles underlying the Constitution and its often vague language, amplify those principles on the basis of some moral or economic philosophy and apply them to cases.

It appears that the majority of the SCOTUS today and throughout most of history feels the same as former justice William Brennan Jr. Brennan, who stated that the Constitution is from “a world that is dead and gone,” and that the founders could not possibly have envisioned the world today. With this reasoning in today’s hypersensitive, politically correct world, almost the entire Constitution could be and is interpreted to meet the socialist whims of liberals. Perhaps we don’t need the Second Amendment because guns hurt people. Perhaps we don’t need the First Amendment because free speech offends people.

Interest groups, activists and extremists who could not otherwise get their agenda passed through the legislative process since the vast majority of Americans realize that it is not what America is about or what it ever was intended to be use the courts as the institution of last resort. These activists believe that the SCOTUS must move beyond the narrow language of the Constitution to guide and shape policy, and that the SCOTUS should uncover rights and principles that are not expressly stated in the Constitution. What these groups do not seem to understand is that judges are appointed, not elected. This makes them basically untouchable and unaccountable to the voters.

The SCOTUS has a traditional role of making careful and cautious interpretations of what a law or the Constitution means. If they take the role of activist and begin formulating wholly new policies, they become unelected legislators. Despite certain people and groups trying to twist the meaning of the Founding Fathers, it should be clear to anyone -- even those educated in the revisionist history classes taught in public schools -- that they never intended judges to become legislators.

In theory, the SCOTUS, according to the activist viewpoint, could take the Constitution and read into it basically whatever it wanted. It could literally say that it interpreted or read into the Constitution anything. It could even say that a woman has a constitutional right to kill her unborn child and call it her right to privacy. I will get into this further in the next paragraph. If this were really the view the Founding Fathers had, why would they have bothered with a constitution at all? If future generations could change the meaning of the document they gave this country at a whim and say they are doing it to keep up with the times, and that this document is outdated, the Constitution would be pointless and meaningless. According to Judge Robert Bork, the SCOTUS needs to be prevented “from assuming powers whose exercise alters, perhaps radically, the design of the American Republic. The philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the U. S. Constitution.” How ironic is it, then, that according to Judge Bork in the document, itself, that the activists try and change the meaning of, it states on its face that its meaning should not be changed.

Even those who take the activist view of the SCOTUS say that it is best suited to protect individual and minority rights and to provide protection for the poor and the powerless. Who is more powerless than an unborn child? When the SCOTUS finds in the Fourteenth Amendment of the Constitution under the “due process clause,” which states “no state shall deny any person life, liberty or property without due process of law,” that a woman has the right of privacy to take her child’s life, they are being an activist court and reading into it something that is not there. In actuality, it seems that this particular statement would mean the opposite of what the court stated. “No state shall deny any person life” sounds as if no person should be denied “life” -- not the privacy to take life. The abortion debate provides the best example of why the SCOTUS should not be activist. This one bad decision by an activist Court has cost 45 million lives.

While I have barely scratched the surface of the topic of the Supreme Court of the United States of America, one last point should be noted. The SCOTUS made itself the final arbiter of the Constitution in the case of Marbury v. Madison, which took place in the early years of this country. As stated earlier, the founders set up our government so there were three separate but equal branches of government. The way the court legislates from the bench and their word is final means there is no such thing as equality. The SCOTUS took control the same way the federal government wrested most power from the states under the guise of interstate commerce even though the government was initially set up for the states to have as much if not more power than the federal government . . . but that’s a story for another day. 

"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

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