The most important public officials in this election year will not appear on any ballot because they are not elected. The federal judiciary has become the most powerful branch, rather than the weakest as America’s founders intended, because judges have taken control of the law away from the people. The Constitution may say what the people want it to say, but today it often means what judges want it to mean. Liberty is a casualty of this judicial takeover. But there is hope. While we do not elect federal judges, we do elect those who appoint them.
Judges come in two basic varieties when it comes to interpreting the Constitution. Judges believe either that the Constitution’s meaning comes from the same source as its words, or that it comes from somewhere else. The first type of judge is sometimes called restrained, originalist, or constitutionalist. The second type of judge is just plain activist. Judges either accept what the Constitution already means, or they create whatever meaning they want the Constitution to have.
Over the last few decades, Presidents have appointed an average of 48 judges per year and those judges serve for an average of more than 20 years. While lower court judges have the final say in literally 99 percent of federal court cases, however, we do not call it the “Supreme” Court for nothing. Examples abound of cases in which the Supreme Court correctly interpreted the Constitution on critical issues by the slimmest 5–4 margin. If ever a single vote makes a huge difference, Now is the time. Replacing any member of this majority with an activist justice will mean that the Supreme Court will exert even more control over the Constitution and that such cases and issues may well be decided the other way.
By only a 5–4 margin, for example, the Supreme Court has held that the 2nd Amendment right to keep and bear arms is an individual right that neither states nor the federal government may infringe. In District of Columbia v. Heller (2008), the court struck down the District’s handgun ban after exploring what America’s founders intended the 2nd Amendment to mean. Justice Breyer’s dissent argued that even rights explicitly in the Constitution’s text must conform to how judges balance the interests of individuals and the government. In other words, we have only the rights that judges choose to give us.
By only a 5–4 margin, the Supreme Court has held that the government may not control who may speak on political issues during election campaigns. In Citizens United v. Federal Election Commission (2010), the court recognized that groups of people, such as non-profit organizations or corporations, as well individuals can exercise “the freedom of speech” that the 1st Amendment protects. It struck down a state law and part of a federal law prohibiting expenditures for political speech by certain groups during election season. Nothing threatens free speech more than the government’s controlling who may speak about the government.
By only a 5–4 margin, the Supreme Court has held that private organizations may determine their own membership and leadership. In Boy Scots of America v. Dale (2000), the court upheld the Boy Scouts’ policy of excluding open homosexuals. Dictating a group’s membership, the court said, is often akin to dictating a group’s message, something the 1st Amendment prohibits the government from doing. Justice Stevens’ dissent argued, in effect, that judges may determine what a group’s values are and what furthers or undermines those values.
By only a 5–4 margin, the Supreme Court has held that the Ten Commandments may be publicly displayed under some circumstances. No constitutional provision has been twisted and distorted more than the 1st Amendment’s prohibition of an “establishment of religion.” America’s founders gave that phrase a narrow meaning in order to prevent government coercion of religious belief or behavior. Federal judges have given that phrase an ever-expanding and shifting meaning in order to prohibit religion in public life. In Van Orden v. Perry (2005), the court said that the Ten Commandments’ appearing on one of many monuments and markers on the Texas State Capitol grounds did not establish religion. If the dissent had its way, the mere presence of a religious symbol in a public setting would be an establishment of religion.
The slim support that the Constitution has in the Supreme Court will be on open display in the weeks ahead during the court’s evaluation of ObamaCare’s insurance mandate. In one of its most important 5–4 decisions, the court held in United States v. Lopez (1995) that the federal government’s power to regulate interstate commerce had at least some limit. The court struck down the Gun Free School Zones Act, a federal law banning possession of a gun within 1,000 feet of a school. Not only did nearly every state have a similar law, but possessing a gun in a particular location is neither commercial activity nor (as the Supreme Court had already embellished the clause) does it substantially affect commerce. Justice Breyer’s dissent insisted, in effect, that interstate commerce is whatever the federal government says it is. In other words, four justices believed that the federal government can essentially define its own powers.
These and other cases are important for their results, but even more for the process the court used to reach those results. The court looked for the meaning that the people had originally given a constitutional provision before applying that provision to decide a case. That approach is necessary so that judges follow rather than control the law.
The Supreme Court today has the same basic balance between restrained and activist justices as in these cases. Switching a single vote will mean that the Constitution will mean whatever five justices say it means, that government has the powers and we have the rights that judges see fit. Our freedom literally hangs in the balance.
The ten cases listed below are considered some of the most important rulings handed down by the Supreme Court in recent years. By a slim 5-to-4 majority, constitutional experts like Senator Hatch argue, the Court landed on the side of the Constitution:
United States v. Lopez (1995): commerce clause/federal power
Zelman v. Simmons-Harris (2002): First Amendment establishment clause/school vouchers
Arizona Christian School Tuition Org. v. Winn (2011): First Amendment establishment clause/school vouchers
Citizens United v. FEC (2010): First Amendment free speech clause/election-related spending
Arizona Free Enterprise Club’s Freedom PAC v. Bennett (2011): First Amendment free speech clause/election-related spending
District of Columbia v. Heller (2008): Second Amendment/right to bear arms
McDonald v. City of Chicago (2010): Second Amendment/right to bear arms
Gonzales v. Carhart (2007): partial birth abortion
Boy Scouts of America v. Dale (2000): First Amendment/freedom of association
Van Orden v. Perry (2005): First Amendment establishment clause/Ten Commandments display