Written on Wednesday, October 17, 2012 by J. Matt Barber
Who says Republicans and Democrats can’t agree? Every four years, politicos and pundits, both left and right, come together in a harmonious hymn of hyperbole: “This is the most important election in history!” they sing.
I think hyperbole is responsible for all of the world’s problems. Still, this time nobody’s exaggerating. What happens on Nov. 6 really is of critical importance. America’s future really does hang in the balance.
We’re in uncharted territories. We’re lost. We stand dazed at cliff’s edge – legs wobbling – with big government winds at our back. Under President Obama, the reasons for this election’s unparalleled significance are piling up like pink slips in the private sector, like credit rating downgrades, like zeros on the national debt.
Yet, as I see it, there are nine black-robed reasons in particular that reign supreme.
And those reasons never get a pink slip.
In Federalist No. 78, Alexander Hamilton wrote: “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. … [T]he judiciary is, beyond comparison, the weakest of the three departments of power … [and] the general liberty of the people can never be endangered from that quarter.”
I know. Settle down.
Alas, Alexander Hamilton was obviously no better with a crystal ball than he was with a dueling pistol. For better or for worse (hint: for worse), today’s judiciary – through the constitutionally erosive drip-drop of judicial attrition and congressional submission – has, instead, become the most powerful branch of government.
Today, rather than the properly balanced, decentralized constitutional republic our founders envisaged, we live, to a large degree, under a very much centralized judiciocracy. (That is, when President Obama’s not circumventing the Constitution via executive fiat.)
William Howard Taft, who served as both our 27th president and our 10th Supreme Court chief justice, had unique insight into the dichotomy between the framers’ intent, and today’s reality. He summed it up well: “Presidents come and go, but the Supreme Court goes on forever.”
Indeed, due to the creeping misalignment of separation of powers, the function of appointing Supreme Court justices is almost certainly the most significant thing any president can do. Though it defies the High Court’s original construct, these nine unelected, well-meaning, yet very human, individuals profoundly steer law, public policy and our larger culture in perpetuity.
So much for the balance of powers.
Therein lies the problem. Conservative columnist Andrew McCarthy noted in March that four of the nine sitting U.S. Supreme Court justices are in their late 70s and early 80s.
“We wish them all well,” he wrote, “but the brute fact is that whoever we elect as president in November is almost certainly going to choose at least one and maybe more new members of the Supreme Court – in addition to hundreds of other life-tenured federal judges, all of whom will be making momentous decisions about our lives for decades to come.
“If you don’t think it matters whether the guy making those calls is Mitt Romney or Barack Obama,” concluded McCarthy, “I think you’re smokin’ something funky.”
Speaking of “smokin’ something funky,” during Thursday night’s vice presidential debate, Joe Biden touched on the Supreme Court. He agreed with McCarthy: “The next president will get one or two Supreme Court nominees. … For Mr. Romney, who do you think he’s likely to appoint? Do you think he’s likely to appoint someone like Scalia … ? We picked two people. We pick people who are open-minded.”
And, of course, by “open-minded,” Biden means “not bound by those pesky constitutional limitations intended to avert government tyranny.” He means liberal “living constitutionalists.”
To be sure, the next president may well appoint one, two, three or even four new justices to the U.S. Supreme Court. As voters, this should be our most critical point of focus: ensuring an originalist, strict constructionist majority. If Mr. Obama is re-elected and appoints just one more Ruth Bader Ginsburg, forget it. America, as our founders envisioned her, is gone.
This is why, after the primary, I went from an outspoken Romney critic, to a cautiously optimistic Romney supporter. He has pledged: “I will appoint conservative, strict constructionists to the judiciary.”
Still not sold?
President Obama has already shown who he’ll appoint. In Justices Elena Kagan and Sonja Sotomayor – nice though they may be – he has stacked the Court with two radical counter-constitutionalists who share his belief that the Constitution “is not a static, but living document and must be read in the context of an ever changing world.”
Naturally, if the Constitution is “ever changing,” the Constitution is meaningless.
But it gets worse. Obama has also called this – the very founding document upon which our laws, public policy, indeed our very freedoms rest – an “imperfect document,” a “living document … that reflects some deep flaws in American culture.”
Moreover, during the 2008 campaign, Obama lamented that the Supreme Court, under Chief Justice Earl Warren, failed to “break free from the essential constraints that were placed by the Founding Fathers in the Constitution.”
Let that sink in a moment. In his own words, this man – a man solemnly sworn to uphold the U.S. Constitution – has betrayed utter disdain for it. He has, in essence, admitted that he views our most sacred founding document as a “constraint” against his thinly veiled efforts to “fundamentally transform” America into Greece.
Thank God our Founding Fathers predicted that men like Barack Obama would come and go. And thank God they had the wisdom to plan accordingly.
Patrick Henry once said, “[L]iberty ought to be the direct end of your government.” Today, we have it exactly backward. Four more years of Barack Obama, and government will be the direct end of your liberty.
Still thinking of sitting this one out?
I hope not.
Matt Barber (@jmattbarber on Twitter) is an attorney concentrating in constitutional law. He serves as Vice President of Liberty Counsel Action. (This information is provided for identification purposes only.)