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America Is a Judicial Dictatorship

Do the states have the right to outlaw same-sex marriage?

Not long ago the question would have been seen as absurd. For every state regarded homosexual acts as crimes. Moreover, the laws prohibiting same-sex marriage had all been enacted democratically, by statewide referenda, like Proposition 8 in California, or by Congress or elected state legislatures.

But today rogue judges and justices, appointed for life, answerable to no one, instruct a once-democratic republic on what laws we may and may not enact. Last week, the Supreme Court refused to stop federal judges from overturning laws banning same-sex marriage. We are now told to expect the Supreme Court itself to discover in the Constitution a right of men to marry men and of women to marry women.

How, in little more than half a century, did the American people fall under the rule of a judicial dictatorship where judges and justices twist phrases in the Constitution to impose their alien ideology on this once-free people?

What brings the issue up is both the Court decision on same-sex marriage, and the death of my friend, Professor William J. Quirk, of the South Carolina University School of Law. In Judicial Dictatorship [1] (1995), Bill wrote of the revolution that had been imposed against the will of the majority, and of how Congress and the people might rout that revolution.

The instrument of revolution is judicial review, the doctrine that makes the Supreme Court the final arbiter, the decider, of what the Constitution says, and cedes to the Court limitless power to overturn laws enacted by the elective branches of government. Jefferson said that to cede such authority to the Supreme Court “would place us under the despotism of an oligarchy.” Was he not right?

Consider what has transpired in our lifetime.

The Supreme Court has ordered the de-Christianization of all public institutions in what was a predominantly Christian country. Christian holy days, holidays, Bibles, books, prayers and invocations were all declared to be impermissible in public schools and the public square. Secular humanism became, through Supreme Court edict, our established religion in the United States.


And the American people took it.

Why was there not massive civil disobedience against this anti-Christian discrimination, as there was against segregation? Why did Congress, which has the power to abolish every federal district and appellate court and to restrict the jurisdiction of the Supreme Court, not act?

Each branch of government, wrote Jefferson, is “independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”

“No branch has the absolute or final power to control the others, especially an unelected judiciary,” added Quirk.

In 1954, the Supreme Court ordered the desegregation of all public schools. But when the Court began to dictate the racial balance of public schools, and order the forced busing of children based on race across cities and county lines to bring it about, a rebellion arose. Only when resistance became national and a violent reaction began did our black-robed radicals back down.

Yet the Supreme Court was not deterred in its resolve to remake America. In 1973, the Court discovered the right to an abortion in the Ninth Amendment. Then it found, also hidden in the Constitution, the right to engage in homosexual sodomy.

When Congress enacted the Defense of Marriage Act, Bill Quirk urged it to utilize Article III, Section 2 of the Constitution, and write in a provision stripping the Supreme Court of any right to review the act. Congress declined, and the Court, predictably, dumped over DOMA.

Republican presidents have also sought to curb the Supreme Court’s aggressions through the appointment process. And largely failed.

Of four justices elevated by Nixon, three voted for Roe. Ford’s nominee John Paul Stevens turned left. Two of Reagan’s, Sandra Day O’Connor and Anthony Kennedy, went wobbly. Bush I’s David Souter was soon caucusing with the liberals. Today, there are four constitutionalists on the Court. If the GOP loses the White House in 2016, then the Court is gone, perhaps forever.

Yet, the deeper problem lies in congressional cowardice in refusing to use its constitutional power to rein in the Court. Ultimately, the failure is one of conservatism itself.

Indeed, with neoconservatives in the van, the GOP hierarchy is today in headlong retreat on same-sex marriage. Its performance calls to mind the insight of that unreconstructed Confederate chaplain to Stonewall Jackson, Robert Lewis Dabney, on the failure of conservatives to halt the march of the egalitarians:

American conservatism is merely the shadow that follows Radicalism as it moves forward towards perdition. It remains behind it, but never retards it, and always advances near its leader. … Its impotency is not hard, indeed, to explain. It is worthless because it is the conservatism of expediency only, and not of sturdy principle. It intends to risk nothing serious, for the sake of the truth, and has no idea of being guilty of the folly of martyrdom.


Patrick J. Buchanan is the author of the new book “The Greatest Comeback: How Richard Nixon Rose From Defeat to Create the New Majority.” [2] Copyright 2014 Creators.com.

69 Comments (Open | Close)

69 Comments To "America Is a Judicial Dictatorship"

#1 Comment By paleo-conservative On October 10, 2014 @ 11:05 pm

Also, it does open the door now for polygamy. If two people of the same gender can be legally recognized and tax payer funded spouse benefits through social security- and other marriage benefits – then there is NO legal argument against polygamy. If marriage is defined as two- then why not three consenting adults?- if three – then four- etc. It is devastating for society long term and for children.
If fact, there no coming back from it. From it.No coming back from judicial fiat- and from replacement level immigration of disparate persons. After that, nothing matters. it’s every man and woman for themselves. The continuity is broken forever. There is a point of no return.

#2 Comment By Anonymous On October 10, 2014 @ 11:21 pm

It’s ironic that Pat was instrumental in the creation of the American Conservative, whose readership now seems to consist almost entirely of liberals.

#3 Comment By J.R. On October 11, 2014 @ 7:38 am

Mick you reveal that you are not well informed on the teaching of the Church on the death penalty. The Church in the Catechism recognizes the lawful authority of the state to use the death penalty. Personal statements by this or previous Popes don’t constitute authoritative statements about Church teaching only the views of those Popes.

You really need to do some more reading of books. Buchanan is a fine and obedient Catholic.

#4 Comment By MH – Secular Misanthropist On October 11, 2014 @ 9:54 am

Isn’t Constitutional amendment the check on the judiciary?

#5 Comment By EliteCommInc. On October 11, 2014 @ 10:36 am

” I no more want to see people doing private things in public (having sex for example) than I want to see/ hear them speaking in tongues to their God, which are also private things, in public and at government meetings, or children’s schools, etc.”

Laughing and laughing. I am found of comparisons, but prayer and relational conduct. Christ did make reference to one’s ‘prayer’ closet. But he also found it appropriate to pray in public.

I hate to be the whiner on details — but they mater. Christ’s admonition is for prayer not to be a show. It was not against public prayer in tongues or otherwise.

Now it is clearly unlikely that Chris would have supported public relational expression — even among married people because marriage itself in this dynamic is a private expression exclusive for that married man and women.

But apparently Christ had no compunctions about praying in public regardless of who it might have offended. In other words, prayer can be expressed both publicly and privately as long as in both cases it was sincere.

I stand with Christ. People are free to pray in public if they choose and I will leave their motive to their conscience.

Only thing worse than liberals not knowing scripture is liberals expounding on scriptural passages — and doing so in public, all the worse that their lack of comprehension is expressed with all sincerity.

#6 Comment By HeartRight On October 11, 2014 @ 2:34 pm

Officially, liberals believe in Democracy.
But in practise, they are perfectly OK with overturning laws with Democratic legitimacy through un-Democratic means.

Democracy needs to be protected from liberal subversion. We can have Democracy without the vileness of liberalism – as India, Hungary, Brazil, Venezulea and so forth show us.
The sooner liberalism is purged out of Democracy, the better.

#7 Comment By William Burns On October 11, 2014 @ 4:09 pm

Remember how many principled conservatives supported the Supreme Court’s ruling in the Obamacare case because the “unelected technocrats” bowed to the will of the American people?

#8 Comment By EngineerScotty On October 11, 2014 @ 5:02 pm

I do find it amusing that failure to grant certiorari, which is what the recent SCOTUS “ruling” was (and nothing more), now constitutes judicial activism.

A free reminder, though I’m sure Pat knows this already: Failure to grant cert creates no precedent, and says utterly nothing about the merits of the case. (Though in this case, Pat might have a small point–there’s a good chance that the Court is going to let marriage equality become the law of the land, one circuit at a time, without having to touch this issue themselves–but even then, such wouldn’t create precedent that binds the circuits).

#9 Comment By Michael O’Hearn On October 12, 2014 @ 2:57 pm

To clarify, Justice Kennedy generally takes a broad view in writing his opinions, reflective of the wealth of our Western tradition. In ruling on the fate of DOMA he wisely followed the prescription tha a house divided against itself cannot stand, recognizing that as long as some of the several states, in addition to neighboring countries, recognize non-traditional type marriages, the federal government has no business in effect taking away their rights by treating them differentially, a clear violation of the Fifth Amendment. We must never forget though that the federal judiciary itself irresponsibly imposed non-traditional marriage on our Christian nation. It will be up to the Court to at some point overturn these bad decisions, unless Congress and the Stares finally wake up and amend the Constitution to protect authentic marital unions and invalidate all others. The last thing America needs is another war.

#10 Comment By Brandyjack On October 12, 2014 @ 7:00 pm

That the Supreme Court is abiding by the Second Amendment is obvious. The Founding Fathers, many of whom were Deists and only faintly Christian, and others knew the results of any organized religion. The Salem Witch trials were still recent history. Maryland was founded for Roman Catholics to have a save haven. Rhode Island was founded by a exiled Puritan. Pennsylvania was founded by the Society of Friends, the Quakers. So, no single Religious convention or dogma was given any power, and rightly so.

#11 Comment By Brandyjack On October 12, 2014 @ 7:15 pm

That the Supreme Court is abiding by the Second Amendment is obvious. The Founding Fathers, many of whom were Deists and only faintly Christian, and others knew the results of any organized religion. The Salem Witch trials were still recent history. Maryland was founded for Roman Catholics to have a save haven. Rhode Island was founded by a exiled Puritan. Pennsylvania was founded by the Society of Friends, the Quakers. So, no single Religious convention or dogma was given any power, and rightly so. May I add, ” the spirit that drove us to civil was is back” Andy Schmookler

#12 Comment By Christian Schmemann On October 13, 2014 @ 10:11 am

Let us remember that this same Supreme Court that has imposed the religion of secular humanism on America is the same Supreme Court that gave us corporate personhood, Citizens United, erodes voter protections, erodes union rights, and came close to saying that health insurers have a constitutional right to deny people access to healthcare based on pre-existing conditions or for getting sick.

The reason why Americans did not fight the Supreme Court imposition of secular humanism, and the reason why we have this judicial dictatorship is the growing individualism in American social and cultural life.

No religion makes sense to an individualist, and Christianity in particular makes no sense to an individualist- the existence of Christianity is a threat to individualism, despite Christianity making no actual threats. The Supreme Court, being an unelected politburo, is the primary enforcer of this religion of secular humanism.

#13 Comment By Christian Schmemann On October 13, 2014 @ 10:11 am

For the Anonymous poster who commented on the heave “liberal” readership of The American Conservative, I am a centrist-conservative Blue Bog Democrat (and yes we still exist, despite what Nancy Pelosi would have you think), but the reason why so many liberals read TAC is that this is the only Conservative publication that is logically coherent, rational and thoughtful.

#14 Comment By Michael O’Hearn On October 13, 2014 @ 11:44 am

If Congress thought about what is really at stake eschatologically, i.e. heaven versus hell, they would do the right thing by immediately cutting off funding and stripping all inferior federal courts of jurisdiction within Constitutional prerogative, and get on with the business of passing an amendment guaranteeing our nation’s commitment to authentic families through non-recognition of fraudulent versions of marriage.

Why does not Congress wake up? Capitalism is the corrupting influence that robs people of power by forcing compromise on principles that are absolutely right or wrong in themselves.

#15 Comment By Thomas Sm On October 13, 2014 @ 1:04 pm

The fruits of voting GOP…

#16 Comment By Tallgrass05 On October 13, 2014 @ 11:07 pm

“rogue judges”–then their decisions must be a conspiracy.

“The Supreme Court has ordered the de-Christianization of all public institutions…”

Bogus claim.

This is just another example of a conservative claiming to love the Constitution but being ignorant of what’s in it.

#17 Comment By Harold Gielow On October 14, 2014 @ 8:56 am

I suggest a read, or re-reading, of Michael Sandel’s “Democracy’s Discontent.” The current reigning lower court rulings comport with Bowers v Hardwick and Loving v Virginia, as well as the court’s eschewing decisions of good versus the individual right. If state’s have the sole right to define marriage, then miscegenation laws were equally their right to define. Should incorporation be reconsidered? Although I am morally opposed to the current redefinition of marriage, and do believe there should be room for society to define that good which they should and will seek, the issue is not philosophically cut and dry, complicated be past societal prejudices and usurpations of individual liberties. Does government have a compelling interest to define the good? What level of government? Within what context or moral framework should such decisions be made? Although it may be self evidently true that man should desire only that which is good for him, a societal imposition of their collective definition of the good can quickly escape the bounds of self evidence, calling to mind the need for the additional elements of strict scrutiny: narrowly defined and least intrusive. The supreme court did us all a disservice by not at least agreeing to intellectually wrestle with these issues.

#18 Comment By ADM64 On October 14, 2014 @ 12:59 pm

While agreeing with Pat that we are under the control of an out-of-control branch of government, I fail to see how judicial review per se is the problem. What function does the Supreme Court have if not this? A review of the debates from the Constitutional Convention reveal that the Founders expected it to function in this way, albeit with some differences over how to control this. I would suggest that the larger problem is the Progressive notion of government as being everything, something that developed in the 1930s, and with it the death of limited government. Had the Supreme Court tried some of the things it has done today back in the days of the Founders, its members would have faced impeachment. My opinion is that amendments more clearly spelling out some things would be a step in the right direction, perhaps coupled with re-confirmation of justices at 10 year intervals (part of holding them to good conduct) but short of impeachment, there isn’t much that can be done.

#19 Comment By Delirium On October 16, 2014 @ 1:36 pm

Thus we see that the supposed rule of the law is in fact the rule of the lawman, and his utterly arbitrary ideas about the meaning of words.

The advotates of de-Christianization use the usual cheap deflections: demandig obedience to their atheistic dogmas is “wordview-neutrality”, gender-neutralizing marriage is “rights for minorities”, despite such minority status being unaccounted for.

And Marx will let them know that the complainer is obviously just mourning his lost privilege.