Pat Boone
Saturday, July 2, 2005

In ruling that the Ten Commandments may not be displayed in a Kentucky courthouse, the decision states that "the divisiveness of religion in current public life is inescapable." The champagne-popping decision for the ACLU continues, "This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief." As an example of improper respect to "an establishment of religion" the decision even cites favoritism toward monotheism!

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Well, kind of strange to say to the Supreme Court, but ... "That's your opinion." If avoiding "divisiveness in public life" can appropriately motivate this constitutional ruling, cannot the added cohesiveness in public life that would come from occasional homage to the Ten Commandments appropriately motivate an opposite ruling? After all, the Ten Commandments are far more ancient than our experiment in nationhood and are deemed scripture by near-universal swaths (Islamic, Jewish and Christian) of our population.

The Supreme Court – God save it, indeed – is a venerable institution, but its members are flesh-and-blood mortals, increasingly shown as ordinary humans in pop news outlets. There's no clapping our hands and believing in the civics fairy that will magically cause a written opinion of five out of nine of these mortals to have sudden standing as constitutional writ. When four out of nine have issued equally erudite opposing opinion, many of us are not clapping our hands; we're clenching our fists.

To believe in the sanctity of Supreme Court rulings – to value consensus and get along – has long been part of ordinary civic duty to traditional Americans, and I count myself among them. However, our paramount duty remains to attend to the sovereignty set forth in the Constitution's opening words, "We the People."

Compared to this duty, respecting judicial review should rate much lower in our hierarchy of values. Judicial review originated in the happenstance Marbury v. Madison decision that came 15 years later (and far less deliberately) than the ratification of the Constitution, and there wasn't a second instance of it for another 54 years.

Thomas Jefferson himself savaged the very idea. Reflecting on Marbury v. Madison, he wrote, "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." In a perfect description of our predicament today, he wrote, "The exemption of the judges from [re-election concerns] is quite dangerous enough. ... The people themselves ... [are] the true corrective of abuses of constitutional power."

What then, oh what, should we do in today's circumstances? We the People seem to get mugged by a thuggish Supreme Court more often than ever. In the term just wrapped up, it stretched our protection against government "respecting an establishment of religion" another step toward denying even any official mention of any religion or scripture. And We the People had our sovereignty diminished by a 5-4 decision that will allow the government to seize private property contrary to anything ever allowed previously under Fifth Amendment guidelines.

Thankfully, there is widespread uproar from popular and respected commentators. On her radio show Dr. Laura Schlessinger openly and seriously invited contact from anyone who could tell her how she might be among the investors in a proposal going before the town council of Justice David Souter's hometown – no joke – to build a tax-lucrative development on land that will necessitate the local government taking his home.

George F. Will titled his commentary "Thou Shalt Split Hairs" and scorned the Supremes' recent decisions as intellectual embarrassments, and Peggy Noonan complained about "the lack of seriousness" from the justices who "are famously very old" and "have been together as a court for a very long time."

John Podhoretz wrote in the New York Post that the nation "is in desperate need of some new blood on the court, which in its current composition has lost its ability to reason coherently." Rush Limbaugh spoke soberly about the practical challenge of amending the Constitution to provide for congressional supermajority override of high court rulings, to operate just as congressional override of a presidential veto always has.

And the former deans of the Duke and Cornell law schools lead a panel of legal scholars now proposing – through statute, not constitutional amendment – term limits for Supreme Court justices.

"Judicial carcinoma" is the term coined by the distinguished lecturer and surgeon Dr. Scott Magill for the overgrowth of authority exercised by the Supreme Court over the American body politic. He makes the point that our heritage of values is really the DNA of America's body politic, whereas government is actually the immune system, and that the abnormal growth of unchecked Supreme Court power is a life-threatening cancer.

That may sound just short of bomb-throwing rhetoric but – let's face it like adults – it reflects a valid concern of thinking citizens. Too many know the details of Supreme Court cases these days, too readily and too thoroughly. And the fact that We the People are losing our sovereignty is too blatantly obvious.

When I wrote weeks ago in these columns that seeking to change the role of courts in our political system may be immoderate but it still isn't illegitimate, I agreed with the incantation of certain of my opponents that "we must have a government of laws, not of men." But it's only We the People – not they the judges – who possess the legitimate political sovereignty to make the laws in the first place.

Lately, it seems we're finding that turned upside down. Internal dissent published with these recent 5-4 Supreme Court decisions argues that very point. With this and other court controversies so much in the news here in 2005, the overwhelming importance of taking judicial reform seriously is as sharply in focus as it's likely ever to be.

This is the stuff of our legitimate survival as We the People. If the expression ever applies, it does here: "If not now, when? If not us, who?" The answers must be "Soon" and "Us," or we will deserve the eternal disdain of our founding fathers as we continue conceding goodbye to majority rule and hello to oligarchy.

See related article: A Government of Laws, Not of Men

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