I don’t have a strong opinion on the abortive flag-desecration amendment; but I do have a strong opinion on the judicial usurpation of politics: I am against it and regard it as an incipient despotism of a particularly subtle and dangerous sort. Thus I find myself inclined to support almost anything that demonstrates, or has the effect of demonstrating, some resolution on the part of the Legislative branch to restore the proper balance of constitutional interpretation. Alas, it appears that not only is our National Legislature lacking in the requisite resolve; it lacks also the necessary guile and enterprise. Judicial usurpation is in practice a difficult and complicated problem, but in principle it boils down to this: the Courts have arrogated a power which the Constitution does not grant them; the power, namely, of final authority over what the Constitution means. They have become, on a vast collection of issues — particularly the sort of issues that really roil our politics because they implicate matters that go to our very identity as a people — our Lawgivers. They have, at various times, announced their authority — to decide who is and who is not a person afforded the protection of law; to overturn duly-enacted and popular law on the grounds that it derives from the moral and religious sensibilities, notwithstanding that this very act of overturning itself derives from the judge’s moral sensibilities; to simply remove the most important word from the First Amendment — the first word — and thereby render a whole other amendment (the Tenth) void; to make the Establishment Clause the antagonist of the Free Exercise Clause, with the former emphatically holding the upper hand*; to call upon, based on the judge’s discursive divination, trends in foreign jurisprudence to fetter the self-government of Americans; to interfere in the governance of private enterprise based on the principle of equal protection, but, on the same principle, to establish in law racial privilege. It is likely that I have forgotten other outrages as well.
I don’t know if the Flag Amendment would have done anything to correct the Judicial Usurpation. I find it, in fact, rather unlikely, and thus do not much lament its failure. But there is not doubt that the condition of the Republic, under the gathering despotism of the courts, is a thing to be observed with dread and indignation. The Right has been content, for the most part, to envisage the correction of the trend in the confirmation of better judges. I admit that this seems the easiest and least radical method, and I will cheer it warmly if successful; but if past experience is any guide, it also seems less than promising. We have, it is true, two capable new justices whose philosophy is a marginal improvement; but what American republican, sensing his liberty being drained away by the courts, can have much confidence that a true correction can come voluntarily from the selfsame class — a class segregated from the people themselves — that has, for some 40 years, made this usurpation its business?
Wednesday, June 28, 2006
I Have my differences with the poster, but this explantion of what the debate about the flag amendment is about is right on target: