America was originally settled in the 1500-1700s as territories of France and Spain or colonies of England. Eventually the French and Spanish settlements were bought or subsumed into the predominately Protestant English administered lands. The majority of English newcomers sought both political and economic freedom.  England of the late 1600s roiled with questions of personal and religious freedom, the responsibilities and powers of the King, and the rights of citizens in relation to the King/State.

 With one eye on England and the other on the frontier, the founding citizens of the colonies were  shaped by, and beneficiaries of, the English struggle to confine royal power, excesses of the crown, and emerging ideas of individual liberty.  The English legal tradition had been developing since 1215 when King John, forced by his own barons, signed the Magna Carta, a foundational document for political and personal freedom.

 The Magna Carta binds the King and his heirs “forever” to the same law that governs all men of the realm—in effect, not even the King was above the law, though the King and his advisors were responsible for making law. The Magna Carta outlines essential rights and liberties that cannot be abrogated by rulers. How can any law of the realm be above even the king? Where did such and idea come from—that absolute power cannot and does not rest on a king?

 This is a crucial question by which we in the Western Tradition define our societies, our very civilization. Is Man a mere subject of king or tyrant? Is the life of the individual person worth no more than a cruel despot (Saddam Hussein) or pompous Emperor (Nero) declares it to be? Is the State (Nazi Germany, Soviet Union) all powerful?

 The preamble to the Magna Carta states clearly how it is that the King (or any ruler) is himself a subject. The famous document opens with this statement:

  “John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou,…. Know that, having regard to God and for the salvation of our soul, and those of all our ancestors and heirs, and unto the honor of God and the advancement of his holy Church and for the rectifying of our realm….(emphasis added)”  Clearly the king sets his authority under and subject to the authority of God who is the Maker of all things, including the souls of men.

 Englishmen colonists established their communities in the New World with the understanding that God held even the designated ruler accountable to a law that is above any law made by men.  The United States Constitution is in direct lineage of the Magna Carta, one of the pillars of Western Legal Tradition. The Magna Carta in turn is informed by Christian teaching and scriptural imperatives.                    

 During the late 1700s the delegates who drafted the U.S. constitution, relied on English common law as it had evolved from Magna Carta. Thus, the Founding Fathers of the United States of America knew and intended that the laws of the new Republic would acknowledge God and Natural Law—that is, the Law that precedes and accompanies Man due to his status as a creature made in the image of God. That acknowledgment protected citizens from an abusive state or party by circumscribing the limits of human power.

 The Founders were also savvy—men of intelligence and experience, they understood theirs to be an “experiment” in liberty and self-governance. These men of history were not all of one mind, nor of one faith. There was surely a “pluralism” then as now. Because of their pluralist viewpoints and with a profound distrust of unchecked power these wise men designed a system whereby one branch of government “checked” the others through the exercise of its own specified powers. As long as each branch, the Executive (president and administration), the Legislative (makes law) and the Judiciary (interprets law) works within its delegated power, a balance of power is maintained.

 The shared vision of most of the signers of the Constitution were for a limited national government, leaving to the people and their communities the more intimate questions of life, liberty and the pursuit (not promise!) of happiness. In this deliberate limitation they created a superior sovereignty for the people, superior to that of the British system as it had evolved since 1215 A.D.

At this juncture in United States history we are confronted with a Judiciary that has run amok. The Supreme Court has over stepped its specified powers. The result is an imbalance among the three branches of government as outlined in the Constitution. This is most readily seen in recent cases whereby the Court has made law rather than to interpret laws made by Congress as representatives of the people.  This is a very real threat to our liberties under the Constitution that carefully limited the powers of the three branches of government.

The Court is unelected. It does not represent the people in a direct manner though its determinations affect the life of every citizen.  You cannot phone, fax or email “your” justice and tell him or her your views. Because the members of the Supreme Court are not elected, they are free from having to campaign for office and thus, in theory, they are free from political intrigue, bribes and kickbacks. This is meant to insure that the interpretation of law is based on the law, not political pressure. But this provision also insulates justices from public pressure--meaning you and me and our neighbors. Your primary relationship with the government is through your congressman and senators. You elect these men and women to directly represent you (and your views) to the branches of government. 

The election of 2004 sent a majority of conservative representatives to Washington. That same election returned George W. Bush to the presidency partly on his promise to nominate to the Supreme Court only those candidates who would be “strict constructionists.”  What does that mean? It describes a manner of approaching the Constitution as a set document whose principles must be applied to all law. A liberal or “progressive” view espoused by some politicians and pundits is that the Constitution is a “fluid” document that can and should change with the times.

Under that ruse, any liberty may be discarded, and any new “law” can be imposed, even a law that violates the clear provisions of the Constitution. Such is the case with Kelo v. New London where the Court deprived citizens of the right to private property (wherever a city chose to confiscate property for  private development that would increase the city’s tax base.)  Such is the case with Roe and Casey (the “abortion” decisions) where the Court “found” new rights to take the life of an unborn baby —a “right” nowhere given by the Constitution.

In each case the Constitution was violated. This sort of violation is the reason Americans sent conservatives to Washington—to insure that new appointees to the Court are faithful to what is given in the Constitution as it is written, not as they wish it had been written. The Supreme Court judges are to interpret law according to the principles set forth in the Constitution, not according to trends and political novelties such as “fluid” documents. The very purpose of a any document is to forestall fluidity and insure specific provisions against a make-it-up-as-you-go  opportunistic assault.

If the Constitution does not mean what it says, then citizens have no protection against a small band of tyrannical judges who use their power to overwhelm the people’s representatives (Congress). Once out of balance, the United States may find itself hostage to a judicial tyranny similar to the royal tyranny that our Founders hoped to avoid. It is a Supreme moment in our history.

Mary Jo Anderson
July 17, 2005