One of America’s last great defenders of our Constitution and Republic, Daniel Horowitz, recently made yet another effort to warn us about the pitfalls of judicial supremacy; especially now that both parties seem to be feeding into it.
What’s important to understand about judicial supremacy is that the “Supreme Law of the Land” isn’t derived from what’s written in the Constitution, nor even what our government representatives, law enforcement, judges, and military personnel are swearing an oath to. Instead, it’s the court’s “interpretation” of what’s written, which goes against the first and foremost principle necessary for securing liberty and a free society — a fixed, limited, and binding Constitution.
Under judicial supremacy, the Supreme Court becomes the supreme being of government — a hydra with as many heads as it has judges in session. Each time a judge sits on the bench in almost any court, the hydra springs another head. It’s a beast that has granted itself the power to interpret rather than ascertain its binding document, and as such, can’t possibly be bound. The will of the people isn’t only subordinated to but is dictated by, the will of their servant. Their oath is reduced to an act of government merely swearing an oath to itself.
When the Constitution is “politically acceptable,” judicial supremacy allows it to stand as written. That’s why it can be difficult to put a finger on it. But when any given aspect of it becomes politically unacceptable, the Constitution is simply overruled — not by the slow and steady process of amendments, but by the whim and consensus of enablers empowered by progressive political elites, a populist progressivism on the street, and a sympathizing progressive court. Incite the masses into wanting for themselves and judicial supremacists will eagerly empower those who would otherwise be prevented from getting all they want.
The lower courts have just as much power to break these chains as the higher courts. If they are both on the same progressive page, the higher court will always let the lower court’s interpretations stand.
Judicial supremacy, or the progressive political construct within which it operates, isn’t new. It’s how we got a “constitutional right” to kill our own unborn. It’s what led to Woodrow Wilson’s “New Freedom,” FDR’s “New Deal,” and Lyndon Johnson’s “Great Society” — not to mention progressive era eugenics and internment.
Judicial supremacy is also how we got Dred Scott, Jim Crow, and the rampant and relative free reign of the KKK. None of these were ever consistent to any degree with living in a free society, our founding principles, or the Constitution. Neither was slavery, as those who led the late Revolution against our Constitution and founding principles in an effort to establish it as the cornerstone of a constitution of their own knew very well. Even then, these things were allowed to stand because they were politically acceptable at the time.
What’s important to remember is that judicial supremacy does not operate under the tenets of liberty, the constraints of our Constitution, or the idea of how America was founded. Period! It wholly operates under a progressive supreme political construct of its own making and by what it — not the Constitution — determines to be politically acceptable at any particular time. It’s what Justice William Brennan called the “true interpretive genius” of our Constitution.
Such interpretations are thus subject to the same interpretations as they were in the 1950s, when this same judicial supremacy began the great undoing of its own “separate but equal” rulings. But no degree of progressivism can ever be the cure for progressivism. Only liberty and America as she was founded can do that. And so it is that desegregation came at the progressive cost of judicial supremacy, and its interpretations became the official “Supreme Law of the Land.”
The upside, if there is one, is that judicial supremacy, as a product of revolutionary progressive collectivism itself, is what exposes the flaw in the likes of the 1619 Project and its mission to “reframe” America. By creating a new narrative about the Constitution and even liberty itself, the 1619 Project claims America is the source of such progressive calling cards as an inherent racism, institutional racism, disparate impact, implicit bias, white privilege, and white supremacy.
This is a great deception and a revolutionary lie, as none of these things are of America as she was founded at all. Still, this is the very progressive collectivism these accusers have come to champion, even though none of these things were allowed to stand because of the Constitution.
And if they ever were allowed to stand, it would be because of the judicial supremacism of their own damn progressivism, which, as Mr. Horowitz points out, is actually the “single biggest deviation” from the Constitution.
Joe Marshall was born and raised in the Finger Lakes Region of Upstate NY. He is a married father of two grown sons, an outdoorsman, a landscape contractor, a former stock car owner and driver, a certified 4H firearms instructor, and a retired New York State corrections officer.
Joe is the author of the book, Last Call for Liberty
