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VOL. 13, NO. 11December 29, 2011
America's Culture War and How to Fight It: Curbing the Courts, VIII

Does our Constitution REALLY still begin with the words, "We, the People of the United States . . ."? It DOES, as we declared in our last Briefing; yet we see federal courts now entertaining cases attacking the fundamental institution of marriage (the attacks on DOMA) and cases restructuring a major sector of our economic policy (the "ObamaCare" program).

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How has this happened in a nation which has always prided itself on having a "republican government" — a government in which the ultimate political power rests with the people — who select officials to exercise that power in accord with the will of the people as expressed most fundamentally in the U.S. Constitution? One answer among several is that the American people and also many politicians have doggedly believed in "the cult of the robe" and "the myth of legitimacy/objectivity" — falsehoods which Reconstructionist judges have used as a shield to hide behind as they frolic with abandon across our constitutional landscape, rendering decision after decision in violation of the Constitution and the will of the people.

These falsehoods were understood decades ago by some leading scholars in law and political science. But these falsehoods are a now an almost intractable force in the Culture War. "The cult of the robe" is a near-mystical attitude of awe and respect held by Americans for judges even when we vehemently oppose judicial decisions. Judges are viewed as an erudite elite whom the "average man" (including "politicians") has neither the ability nor the authority to challenge. Indeed, author and professor Arthur S. Miller has declared that the Justices of the Supreme Court function "as a de facto Council of Elders [who] may be likened to the oracles of ancient Greece" and as "the High Priests who keep it [the Constitution] current with each generation of Americans."

This "cult" myth is joined at the hip to another widely held false belief — in the "myth of legitimacy/objectivity." This falsehood holds that courts, insulated [supposedly] from political pressures and personal opinion, are uniquely objective and, therefore, make decisions that are uniquely legitimate — superior in wisdom and legitimacy to even the decisions and actions of other government officials. When the myth of objectivity is debunked, the other myths die natural deaths.

Debunking these myths is, however, uniquely difficult because of the nature of the courts and the culture. The problem was pinpointed in 1936 by U.S. Supreme Court Justice (later Chief Justice) Harlan Stone, who wrote that, "while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power [i.e., the Court's exercise of power] is our own sense of self-restraint." But Reconstructionist judges openly scoff at the idea of judicial self-restraint and have fabricated a laundry list of justifications for their judicial activism.

The result? Abraham Lincoln made this clear in 1861 in his First Inaugural Address:

The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, ... the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

Today, the people have, far too much, "resigned their government" into the hands of the Supreme Court. What, then, can We, the People, do to regain our rightful control over the judiciary? The 2012 elections offer us a desperately-needed opportunity to revive our Constitution and reclaim our culture. Court Watch will continue in 2012 to provide "education for action," enabling YOU to "arm yourself with the power that knowledge gives" (James Madison). Watch for us as, together, we fight for the survival of our beloved nation in the upcoming elections.

Court Watch Wishes You and Yours a Most Blessed and Joyful New Year!
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