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Paul Hayden

An Activist Supreme Court

July 23, 2012

The left uses federal courts as the primary means of implementing its agenda. We conservatives hope that the Supreme Court may defend reforms we legislative or strike down monstrosities like Obamacare and we bemoan the Supreme Court when it fails us.

We ought to consider doing much more than just hoping the court will moderate the creep of a ubiquitous federal government driving us to godless Marxism. But this is just what we do. Conservatives did not look to the Supreme Court forty years ago to ban abortion in those states which legalized this practice. This is, however, just what the left does.

As a result, our republic has huge encrustations of leftist policies and programs which can only be undone, using the long march of federal legislation tested through an endless process of litigation through the various federal circuit courts and implemented by an executive branch which actually believes in enforcing the law.

It is worth considering – or, perhaps, thinking out loud about – using radical conservative judicial activism to restore our system of limited government guided by Judeo-Christian values operating mainly at the state level. We should consider seeking, even through court packing, a radically conservative activist Supreme Court. Here are some rulings which this court could issue which would revolutionize America:

Equal Protection taken Seriously

The Sixteenth Amendment does not invalidate the Fourteenth Amendment which allows each person equal protection of the laws. As a consequence, a progressive income tax, which taxes at higher percentages the income of those with larger incomes, is unconstitutional. Only a strictly proportional income tax is constitutional.

Honest reading of the Equal Protection Clause would also mean that all affirmative action programs which treated individuals as members of some group violate the Constitution. Individual merit or capability alone could be the basis for any governmental actions. Classes of citizens created by accident of birth would have no legal existence.

Due Process for the Unborn

The fetus is life and if it is life it can only be human life. As a consequence of that, its life cannot be lawfully taken from it without the right to a hearing represented by legal counsel before an impartial tribunal with the same rights of appeal that an axe murderer on death row would have.

No state or federal law which allows the taking of the life of the fetus without such a hearing is constitutional and all laws relating to homicide must be read to include fetuses.

States’ Rights to Establish Religions

Before the Fourteenth Amendment, no one questioned the right of state governments not only to have God in the schools and government buildings. In fact, half of the original states had established state churches – meaning that a particular branch of Christianity was the official religion of the state. This specious legal reasoning which leads to having the United States Bill of Rights supersede states’ bills of rights was the odious “Incorporation Doctrine.”

What happened to state churches before the Fourteenth Amendment? Legislators in each state determined that established state churches were bad policy, but this voluntary choice by the sovereign states hardly mandated official anti-theistic bias. This reform would devolve the interaction of faith and government to the states. We would have what leftists claim to pine for: diversity.

Restrict the “Necessary and Proper” Clause of Article I, Section 8

The whole rambling apparatus of federal programs and departments is largely dependent upon a fantastical interpretation of the “Necessary and Proper Clause,” which allows Congress to pass laws which relate directly to the tight list of enumerated powers. Never mind that the Ninth and Tenth amendments both demand that the Constitution, in gray areas, keep power either with the states or the people; if there was political muscle in Washington, those amendments – which, after all, would have amended Article I itself – are just musty shadows in our constitutional system.

A Supreme Court which gave those amendments life and the enumerated powers serious construction would simply invalidate the vast majority of the federal government. Whole agencies, like the Department of Education, would become an unconstitutional creature which could not be funded and which could not regulate anymore.

One consequence of talking about this seriously would be to warn the left that using courts rather than legislatures to make policy and law works both ways. The Constitution is inherently a reciprocal document. Equal Protection, for example, means that we all have the same interest in not passing bad laws. Freedom of Speech gives us each the right to speak our mind in consideration for those we dislike having the same right.

Today judicial activism is a single-edged sword: the left, alone, uses the courts to make policy. Once we make clear that this sword now cuts both ways, we will be on the path to true victory.

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Copyright ©2012 Bruce Walker

Bruce Walker is a long-time conservative writer whose work is published regularly at popular conservative sites such as American Thinker.