It has been said that, in America, every political question eventually becomes a legal question. Ever since Chief Justice John Marshall handed down his decision in Marbury v. Madison in 1803, which allegedly established the principle of judicial review of acts of Congress, courts have been increasingly involved in every important public question.
Nevertheless, the judiciary was always intended to be the weakest of the three branches of government. And when it (the judiciary) was confined to its constitutional role of interpreting the law rather than creating it, the judiciary did not greatly disrupt our constitutional system.
Unfortunately, courts have not been kept within these constitutional boundaries. In the early days of our constitutional republics, judges strived to "discover" the meaning of law by the honest examination of common references, including: the King James Bible, the common law, and our written founding documents, such as the "Declaration of Independence", the Constitution of Pennsylvania (or the Constitution of the other States in the Union) and/or the Constitution for the United States of America. Judges did not feel free to "enact laws" which conformed to their own viewpoints and prejudices. But modern revisionist legal scholars claim that was exactly what judges had always done, and that there was no point in denying it. In fact, this theory of law was embraced by many, especially social reformers whose views of society were often at variance with the views of the majority of the people and our founding documents.
The first really activist United States Supreme Court decisions arose from the "due process clause" of the so-called 14th Amendment, and were used to protect property rights and the supposedly untrammeled liberty of contracts. These decisions were basically reactionary, protecting commercial interest. This line of decisions, beginning in the late 19th Century, was shortly countered by a contrary activist philosophy arising from the Progressive movement. The rise of the social sciences led some attorneys to use social science research to support their legal arguments. For instance, wage and hour laws regulating child labor were a large bone of contention during the early Progressive era. The "reactionary activist" courts struck down legislation designed to address abuse of child labor, citing the liberty of contracts. This led a brilliant New York lawyer, Louis Brandeis, to develop arguments in favor of such legislation, and other progressive legislation, based on social science research into the detrimental effects of child labor and other "retrograde" practices. Such arguments became known as "Brandeis briefs", but the reactionaries continued to hold control over the Courts until Franklin D. Roosevelt's "New Deal" in the 1930's.
Key elements of "New Deal" legislation were struck down by the U.S. Supreme Court, but Roosevelt used his threat to pack the Court to eventually get his way. While the court-packing plan never passed in Congress, one Justice changed his vote to favor "New Deal" legislation, so that 5-4 rulings against the administration became 5-4 rulings in favor. This became known as "the switch in time that saved nine."
The effective intimidation of the courts by FDR opened the floodgates of judicial activism. After World War II, court decisions implemented the social and legal agendas that deluged the American society in waves of radical changes. A whole series of rulings banned public school prayer and other public religious displays, changed voting laws, revolutionized criminal law, outlawed segregated schools, and implemented judicial proclivities all across the whole social spectrum.
Lost amid all this activism were the warnings of earlier leaders who understood the dangers of government by an unelected and largely unaccountable judiciary. Thomas Jefferson had warned that accepting the notion that judges would have the final say on constitutional questions could only lead to oppression.
Others echoed his sentiments. Andrew Hamilton, for example, stated that the threat of impeachment would keep judges in line. Impeachment had been tried during the early battles between the Federalist and Anti-Federalist, but unfortunately had been found to be a blunt and unsuitable weapon for the protection of representative government under the Constitution for the United States of America and/or the State Constitutions.
One particular instance of judicial activism stands out from all others, and had split America like no other decision since Dred Scott until the "ObamaCare" decision last year. That decision was the 1973 Roe v. Wade ruling, which supposedly "discovered" a constitutional right to abortion. By allegedly removing the abortion debate from the several States and the representative process, the U.S Supreme Court imposed its views on the Nation.
Of course, most of the elected representatives were only too happy to let the unelected judiciary take the heat. But debate on fundamental issues cannot be so easily short-circuited, as candidates for office have discovered. Everyone wants to know their position on abortion, even if the office for which they are running has little or no involvement with the abortion question. Disruption by courts of the normal process of representative government has increasingly warped and skewed the political process ever since. Hotly controversial issues lead to one-issue voting and a splintered electorate, and often obscure other important public policy issues which might be addressed in political campaigns. This, by design, allows another huge unelected contingent, the bureaucrats, to proceed with their unconstitutional work in peace, without much scrutiny or oversight by elected officials or the people.
The only way to reverse this trend toward absolutist rule by unelected officials is a return to the fundamental principles and precepts of law as understood and expounded by our Founding Fathers. This means, among other things, morally based law founded in true Christian beliefs and practices, strict constitutional interpretations and applications based on original intent, strict adherence to limits of governmental powers, and courts exercising only delegated judicial powers, completely separate from the legislative and executive departments of government within the two distinct State and federal republics. And it means constant, responsible respect for the sovereignty and rights of the people at every level of government, by every public servant.
We must regain our rights in Pennsylvania! Fellow Citizens, before we can make any progress in restoring a sane society, each of us must take on the responsibility of understanding our rights and their lawful applications. The best place to start, or to regain knowledge lost or forgotten, is with the rights enumerated in Article I of the Pennsylvania Constitution. They are written in plain language, are unambiguous, powerful and profound. And remember, when evaluating any government action, use Article I as your measuring rod. No action in violation of the rights secured, guaranteed and protected by Article I is permissible. The drafters made this very clear in Section 25, entitled "Reservation of Powers in People", which states:
"To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general power of government and shall forever remain inviolate."
It's our State Constitution, and in many ways it is much more protective of our rights than the Constitution for the United States of America. If we learn, know and use our true history and constitutional law according to their original intents and lawful applications, we need not fear judicial tyranny or any other variety of despotis.
As the signers of the "Declaration of Independence" did, we, "with a firm reliance on the protection of divine Providence", need to "mutually pledge to each other our Lives, our Fortunes and our sacred Honor". For:
"God grants liberty only to those who love it, and are always ready to guard and defend it."