With Utah’s Marriage Amendment recently overturned by a federal court, many Utahns are doubtless wondering what exactly justifies (or not) the courts in overturning the voice of the People.  The answer to this question lies in the concept of Rule of Law.

Rule of Law, according to the World Justice Project, is four things:
1. A system of self-government where all people (including government branches and officials) are held accountable under the law
2. A system based on accessible, open, and stable laws
3. A system where legal rights and responsibilities are evenly enforced
4. A system with competent representatives (including judges) who reflect the community they serve

The United States maintains Rule of Law by many mechanisms, among them the following:
1.  A constitution under which government, majorities, and minorities are all held accountable “to the whole people.”
2.  A constitution which requires the approval of Three Fourths of the States in order to amend it
3.  A legal system under which citizens may sue to enforce legal and constitutional rights
4.  An oath sworn by all government officers, including judges, to uphold the U.S. Constitution

Item 1 – Rule of Law as “self-imposed restraints of the whole People”

A federal court can overturn the will of the a State or a Majority only when their actions are in direct contradiction with the U.S. Constitution.  The States and the Majority must submit to the requirements of the Constitution simply because they agreed to be bound by it.  In fact, all 13 colonies (states) unanimously agreed in their ratification of the Constitution.  In this sense it can truly be said that the U.S. Constitution is a “self-imposed restraint of the whole people.” [1]  The People, through their States, willingly bound themselves to behave within certain limits, and then defined those limits in a written Constitution, and delegated certain power to the Federal government to hold them accountable to those limits.  Rule of Law established by the self-restraint of an enlightened People magnifies the concept of self-government.  Rule of Law by any other means is an admission that the People are not fit to govern themselves, and that Republican government is, or will soon prove, a failure.

[1] U.S. President (and later also Supreme Court Justice) William Taft explained: “[Constitutions] are self-imposed restraints of the whole people.”

Item 2 – Rule of Law as “accessible, open, and stable” through Super-majority Ratification and Amendment

Voluntary constitutions are always created by a super-majority (a high percentage of the People).  A bare Majority (just over half of the People) can rarely form a constitution, at least in a free society, because the bare Minority (just less than half of the People) simply won’t agree to bind themselves to a one-sided compact.  Because a constitution naturally requires such broad consensus to create, a constitution is inherently unifying — its very creation and continued existence require finding common ground between the various social factions, rather than attempting to resolve the controversies that divide them.  (Even slavery for example, was not resolved by the U.S. Constitution.)  Thus constitutions quite naturally tend to fulfill the primary purpose of their creation – to preserve the liberty and moral diversity of all People.  Liberty-based constitutions adopt two fundamental principles: 1) that their content pertain more to procedural justice than to substantive right or wrong, and 2) that any amendments require the same high level of consensus that was required in their formation.  These principles contribute to the continued support and longevity of the Constitution despite moral diversity among the People.

In the U.S. Constitution, these two principles are well represented.

First, the U.S. Constitution is overwhelmingly a document of procedural justice.  Rather than imposing moral mandates of substantive right and wrong against the People, the Constitution provides procedures and system by which the People can determine their own moral course, individually or through their local governments.  For example, by separating the powers of government between the federal and state governments (i.e. Federalism), the Founders hoped to limit federal government to more fundamental and specifically enumerated powers, and reserve to state governments all other powers, including the authority to legislate on moral issues (also knows as the Moral Police Powers).  Obviously, federalism is a great system for preserving Liberty among a morally diverse population, by keeping the authority to resolve more controversial issues at the local level, rather than the national level.  A constitution which supports this concept supports (as much as is humanly possible) all People.

Second, the Constitution is difficult to change.  To amend the Constitution would require ratification by a super-majority of the States (a vote of 75%).  If a bare Majority could amend the constitution, then it would reduce the constitution from an instrument of unification based upon fundamental principles, to a tool of division based upon controversial viewpoints forced on the whole society by a mere bare majority.  Thus the strict amendment procedure allows the Constitution to continue to serve (as much as is humanly possible) “the whole people.”

Item 3 – Rule of Law as Enforced by the Legal System

As we just discussed, the U.S. system protects the Rule of Law (i.e. the Constitution) from the vicissitudes of political change, thereby protecting all the People (excepting the super-minority) against the threat of a Constitutional national oppression.  But what if the legal system developed into something that would allow a bare majority (closer to 51%), or even a minority (perhaps only a few people) to amend the constitution?  What if minority factions could impose their views on all fifty states through the constitutional power, even on highly controversial moral issues?  Naturally this would undermine the Rule of Law, destroy moral diversity (the hallmark of free society), and the Constitution would become a tool of oppression.  Unfortunately, the U.S. Legal System has devolved to a state where the above scenario has become a reality.  Roe v. Wade is a Supreme Court case which perfectly demonstrates how small factions have manipulated the Constitutional authority.

Roe v. Wade

Before 1973 the issue of abortion was recognized as a state issue.  In 47 states abortion was generally illegal, except in cases of rape, incest, or threat to the mother’s health.  Despite the obvious feeling of the People on this issue, and the obvious presumption that abortion was a state issue (the U.S. Constitution being silent on on the issue of abortion), seven (7) justices of the Supreme Court decided that the concept of “privacy” in conjunction with the “due process clause” of the 14th Amendment implied a Constitutional right for women to obtain an abortion.  If the Supreme Court’s tenuous interpretation were to be honored, abortion would cease as to be a state issue (having ostensibly become a Constitutional issue) and all states would be compelled to immediately cast off their prior moral views and begin permitting abortions.  Amazingly, this is exactly how it all ended.  Why it happened thus can only be explained by the People’s complete submission to the Supreme Court’s authority.  Certainly, prior to Roe v. Wade, the People did not know or have reason to believe that the Constitution contained a right to abortion.  The 13 colonies never would have ratified the Constitution if they had believed such a right was included; and any attempt to pass an amendment to legalize abortion in 1973 (or anytime before or since) would have failed.  So, if our government is based on the consent of the People, as that consent is expressed in the plain meaning of the U.S. Constitution, can the Supreme Court legitimately argue that the Constitution always contained this implicit but previously unknown and unsupported right, if the People were always against it?  Or is the Supreme Court in fact abusing its power in order to create new rights, amending the constitution based on its own opinion, and doing so in spite of the will of the People?  If the latter, the only conclusion must be, then, that on a whim, the moral view of a minority (of seven Supreme Court Justices) became the Supreme Law of Land.  The origin of such an incredible arrogation of power by the Supreme Court began in a case called Marbury v. Madison.

Marbury v. Madison

In 1803, the Supreme Court declared itself the “Final Arbiter” on what the Constitution really means.  Ironically, nothing in the Constitution actually says that, but the court maintained that the power was “implied” (much the same way a right to abortion was “implied”).  But James Madison, the Father of the Constitution, and Thomas Jefferson, who penned the Declaration of Independence, strongly disagreed with the court’s interpretation.  Jefferson stated, presciently, that “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”  But over time the People came to tolerate this arrangement — probably because 1) the court relentlessly continued to insist on this power, 2) the court’s decisions were not too questionable at first, and 3) because it was easier for the People to go on with their lives than to constantly check the relentless assertions of the Supreme Court’s power.   This power has come to be called “Judicial Review,” and is now regarded as an unquestionable part of the American Jurisprudential landscape.   No doubt Judicial Review can play a constructive role in the American system, but it can also play a destructive role, as Jefferson foresaw.  A concept closely related to Judicial Review is “Judicial Activism.”  Judicial Activism is when the courts use Judicial Review to impose their own moral and political views upon the law…views which are not justified by the plain intent, origin, or import of the law.  Reading rights into the U.S. Constitution which were never intended by a ratifying super-majority is an indisputable form of Judicial Activism.  It is precisely this kind of Judicial Activism which Thomas Jefferson feared when he made his statement about the emergence of a Supreme Court oligarchy.  This inherent risk of the Judicial Review was one which Jefferson hoped would be tempered by an informed and courageous populace: “Whenever our affairs go obviously wrong, the good sense of the people will interpose and set them to rights….The ultimate arbiter is the people of the Union.”  (Not the Supreme Court.)

Item 4 – Rule of Law as Upheld by Competent Judges and Lawyers

Government officials, including Supreme Court Justices, swear an oath “to defend and uphold the Constitution.”  We must measure the competency of judicial performance by understanding the plain meaning and intent of the U.S. Constitution and holding the courts accountable to uphold it.  Even the Supreme Court must be accountable before the law.  James Madison clarified the rules of this accountability: “the legitimate meaning of the Instrument (i.e. the Constitution) must be derived from the text itself; or if a key is to be sought elsewhere, it must be…in the sense attached to it by the people…where it received all the authority which it possesses.” (Farrand, IV, 447-48).  Madison is saying that the Rule of Law in the Constitution originates in the People (i.e. the super-majority that ratified and amended it), and the plain implication is that even the Supreme Court is to submit to that ultimate authority.  That is, they must interpret the Constitution to ascertain the extent of the consent granted, and then submit to that limitation. We must ask whether the courts are upholding this Rule of Law, and we must hold them accountable.

1) Are judges holding everyone, including themselves, accountable under the law?

As before mentioned, Rule of Law in the United States is created and maintained by the “consent of the governed” who “self-impose restraints” under the principle of a Super-majority consensus.  Judges must submit to, and enforce, the will of the people as expressed in the U.S. Constitution.  To the extent that Judges interpret the Constitution to include things which the super-majority never intended and would never pass as an amendment if it were put to a vote, the Judges are placing themselves above the law.  The Constitution then becomes nothing more than a Rule of Men wearing the mask of Rule of Law, and allegedly Constitutional acts are in fact Unconstitutional.

2) Are such judges (who augment the Constitution without amendment) upholding universal, open and stable laws?  NO!

3) Are such judges using the legal system to establish an arbitrary Rule of Men?  YES!  (Read more below on how judges can re-establish a legal system tending toward a Rule of Law by Judicial Restraint)

4) Are such judges INCOMPETENT in the performance of their duties?  YES! Because they are undermining the constitution and therefore breaking their oath.

Item 5 – What must we do?

We must ask ourselves whether a People who so idly submit to the adverse views of a distant Supreme Court are any less guilty of undermining our great Republic than the Supreme Court itself.  As Jefferson explained: “It is the manners and spirit of a people which preserve a republic in vigour….[D]egeneracy in these is a canker which soon eats into the heart of its laws and constitution.”  (For more on this subject, read my other post “Implied Ratification.”)

As of today, thirty one (31) states have passed laws defining marriage in the traditional form.  In all of these states, that law has been amended into their State constitution (which typically requires a majority greater than that required to simply pass an act of legislation).  Marriage has traditionally been a state issue, the Constitution being silent on the issue (or so it seemed until the courts recently found otherwise).  If the Supreme Court says tomorrow that the U.S. Constitution prohibits marriage amendments, what will the states do?  Did the original colonies intend the U.S. Constitution to govern the question of marriage?  Did the People of the States intend by any subsequent amendment to delegate the question of gay marriage to the federal government to decide once and for all for all fifty states of the Union?  Then why should the People permit the Supreme Court to do so now?  If the Supreme Court Justices can do so, then there is no Rule of Law based in the whole People, but a Rule of Men based in only a few people.

As Samuel Adams said, “We shall be Respected Exactly in Proportion to the Firmness and Strength of our Opposition.”  If the states relinquish their moral and constitutional sovereignty without resistance, then the federal power will continue to tread until it does meet with resistance.  The difficult but only solution is for the People of the States to demand, without equivocation or capitulation, that their authority be respected.

  • The People of the States must compel the federal courts to apply only the plain meaning of the Constitution, as it was generally understood at the time of ratification by three-quarters of the states.  The Master (the People) must insist that its Servant (the Supreme Court and Federal Government) act only within that authority which was granted to it.  (If the People don’t, who will?)
  • The People of the States must compel the federal courts to exercise Judicial Restraint and leave alone those questions which were not delegated to it by the Constitution.  Political factions hoping for federal influence will bring cases to the federal courts without end, begging the courts to decide any and all issues which promote their interests — but the courts must refrain, and it must force these factions to employ the democratic process instead.
  • The People of the States and the Supreme Court must understand that the obvious mechanism for dealing with moral diversity is the concept of Federalism, not a Constitutionally imposed moral tyranny.  Where diversity is shunned, freedom dies.  We must tolerate our diverse neighbors, and States must be left to decide for themselves moral virtue and vice.
  • The People of the States and the Supreme Court must have faith in the mechanisms of Democracy to solve disputes naturally, over time, after public debate and persuasion have run their course, and the consent of the People finally comes around to affirm the truth of its own accord, and not by Supreme Court oligarchy.
  • The People of the States and the Supreme Court must understand that no minority group is granted a constitutional shortcut to circumvent democratic process.  The Constitution already has built-in provisions to protect the minority by allowing them full access to the democratic process.  Thus, Proponents of abortion and gay marriage must be compelled to win their fight using the age-old democratic institutions of persuasion and rhetoric, not by exploiting an incompetent Supreme Court to pre-emptively force their view upon all states under a feigned Constitutional Authority.  The former approach is called Liberty, the latter is called Tyranny, even when used for ostensibly good purposes.

Finally, and in sum, the People of the States must act not only to protect themselves but the very essence of our Republican form of government.  The Supreme Court’s unenlightened activism (and the apathetic acceptance of that activism by the People) stands in direct contradiction to Rule of Law and a Republican system of self-government.  Supreme Court decisions which “judicially amend” our Constitution transform it into a whip of political factions who will, in a vain attempt to forcefully unify our nation under one moral point of view, instead divide this nation right down the middle.  In the end this behavior has all the potential to destroy our great American Republic.  We, as a People and a Nation, have descended below the enlightened principles of our Constitution, and the whole is in danger of losing the only foundation upon which a free nation can be built — the will, power, and authority of a truly enlightened People.

Sign my Petition — “A Declaration of Utah against Judicial Amendments to the U.S. Constitution” (text below).

Jared C. Clark, Esq
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