I confess that this year I am having a hard time with the idea of celebrating the 4th of July Independence Day. It is not because I am not thankful to God for what was done on that day, what it represents, and the blessings I’ve experienced that flow from it. On the other hand, I want to think that maybe this year’s celebration will mark a period in our history in which a new movement for independence was ignited. I hope this will help stir the flame.
What makes the celebration hard for me this year is that, in my mind and to a significant extent, the flame for liberty under law launched in 1776 has been largely snuffed out by the judicial branch of government, and the federal judiciary in particular.
Overthrowing Our Constitution and Separation of Powers
In dissenting from the majority opinion in the marriage case, Justice Scalia expressed more eloquently what I just said:
“But what really astounds is the hubris reflected in today’s judicial Putsch. … They [the majority of Justices] are certain that the People ratified the Fourteenth Amendment [in 1868] to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’”
If we don’t understand the word “putsch,” then we won’t appreciate the gravity of what Scalia said. According to Webster’s Dictionary, a “putsch” is “a secretly plotted and suddenly executed attempt to overthrow a government.”
How is the majority’s decision an overthrow of our government? Justice Scalia explains:
“[The Due Process Clause] stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes.”
In other words, we truly are no longer a self-governing people, but, as Justice Scalia said, a people “subordinate to a committee of nine unelected lawyers.” Rightly does he say that such “does not deserve to be called a democracy.”
Overthrowing Control Over Our State Constitution
The judicial disdain for our form of government was put on further display this week when federal District Judge Kevin Sharp decided it was incumbent on him, as a federal judge, to interpret our state constitution’s provisions governing the means by which amendments to our state constitution are to be adopted.
Under long-standing principles of federal court jurisdiction, federal courts should abstain from interpreting a state constitution unless the argument is that the constitution itself violates a provision of the U.S. Constitution. But that is not the kind of argument really being made here. The argument is that state officials didn’t interpret our constitution correctly and haven’t done so for decades. And I have to ask, “Who is this arrogant federal judge to decide that for us?!” That is a uniquely state question that the state should answer.
Scalia’s Invitation to Action
As I reflect on Judge Sharp’s actions and the judicial putsch of our Supreme Court, I am stirred by the closing comments in Justice Scalia’s dissent:
“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. … With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.” (emphasis supplied)
Justice Scalia, thank you for the invitation to remind our federal judges that their authority flows from Almighty God through “we the people.” It is, in fact, past time to remind them of their impotence if they think it their prerogative to overrule millennia of thinking regarding marriage and the votes of millions of Americans in regard to their state constitutions.
We will remind them, I hope, by strongly urging members of Congress to seriously consider filing articles of impeachment relative to Justices like Kevin Sharp, who arrogantly usurp authority over a state’s constitution, and relative to Justices like Ginsberg and Kagan, who presided over same-sex “marriages” yet did not recuse themselves from the ruling contrary to the federal law that requires recusal if a justice’s “impartiality might reasonably be questioned.”1
And we will also remind these Justices of their impotence by our growing insistence that Congress consider constitutional measures to reform lifetime judicial appointments and perhaps demand that Congress renew the long-forgotten debate over whether Congress should be able to “overrule” by some means a Supreme Court decision.
I believe we will do that if we, on this Independence Day weekend, remember what Patrick Henry said in his “Give me liberty” speech and remember that the blood of patriot fathers like him still runs in our veins. I invite you to listen to this dramatic rendering of Henry’s speech.” And then I invite you to spend some of your Independence Day considering what course you plan to take in the days ahead to restore this great Republic.
If we who love liberty will do that and stand together—despite our differences on particular policy issues—and use the lawful tools available to us, then this may be an Independence Day future generations will long remember celebrating.
1“Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S. Code § 455
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
Get David Fowler’s Blog as a feed.