Are we being governed or ruled?

In the 6 days since the tragic death of legendary Supreme Court Justice Antonin Scalia, the one subject dominating the political discussion has been how the filling of the vacancy on the Court will determine the direction of the Court, potentially for decades.  Replacing the originalist Scalia, for whom judicial restraint and separation of powers were the cornerstone of his jurisprudence, with a liberal justice, would change the court from generally (but far from consistently) conservative to very likely lock-step liberal.

This conventional wisdom is true, but what concerns me is that this truth is one that is accepted as a routine part of the way our country is governed.  It should not be.

As every sixth grade middle-schooler knows, the Constitution establishes three branches of government.  The branches responsible for making policy are the legislative, which is responsible for passing laws, and the executive, which is responsible for setting agendas, proposing policies, acting as a check on legislative excesses, and enforcing the laws on the books.  It is not a coincidence that these are the two branches that are elected by the people.

The judicial branch of government, by contrast, is not, and was never intended to be, responsible for making laws.  In fact, it wasn’t until 1803 – 14 years after the start of our government under the Constitution – that the Supreme Court even formally asserted, in the seminal case of Marbury v. Madison, that it had the power to overturn legislative enactments.  And after Marbury, it was another 50 years  before the Supreme Court struck down another federal statute as unconstitutional, in the infamous – and politically decided – case of Dred Scott v. Sanford.

In the modern era, the Supreme Court uses its power of judicial review so frequently that it has become a generally accepted part of the American perception of our government that striking down laws is a routine act of the Court.  It was never meant to be so.  But as a result of judicial activism, the Court has legislated that

-law enforcement must read a prescribed list of rights to every person upon arrest;

-a woman has a legal right to abortion;

-government and other public institutions have the right to engage in racial discrimination as long as it favors racial minorities;

-the death penalty cannot be applied to any person under the age of 18;

-it is okay for the government to seize a person’s private assets without due process or even any legitimate suspicion of a crime;

-the state can criminally punish people for having hateful thoughts while in the commission of a separate crime;

-a provision of the Obamacare statute that expressly prohibits federal reimbursement to insurance companies in states that operate federally-operated health exchanges actually means that such reimbursement is required.

And on and on and on.

And no one dares question whether the judicial branch of government has the actual constitutional right to make these policy decisions.

The implications of this level of abuse of judicial review by the Supreme Court are profound.  Our founding document, the Declaration of Independence, boldly proclaims the fundamental principle by which our very government was created:  “[G]overnments are instituted among men deriving their just powers from the consent of the governed.”  (Emphasis mine.)  What this means is that the primary principle that underlies our entire system of government is that the government only has those powers that we the people consent to allow it to have, and all other powers and rights are reserved to the people.

It is for that reason, that our Constitution, which established the form and structure of our government, begins with the words “We the people.”  It is we the people who consented to the government having the specific and limited powers set forth in the Constitution, and, in fact, in that very document, we expressly stated that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  (Ninth Amendment)

The fact that all powers of the government are derived from the consent of the governed is also the reason that the Constitution requires that all laws under which we the people must live are passed by elected representatives of the people.  It is we the people, through our elected representatives, who decide what laws we will agree to, and likewise, we the people, through our elected representatives, have the right to repeal laws that we find repugnant.

But not anymore.  In today’s America, some of the laws that impact us the most in our daily lives are created by judicial diktat by nine unelected people with lifetime appointments.   And we the people have no direct say in who those nine people will be – they are appointed by the president and confirmed by the Senate.  We the people also have no direct ability to remove them – only the Congress may do so, and then only for good cause.  And we the people have no ability to repeal any laws that they enact that we find repugnant short of amending the Constitution itself – which everyone knows is intentionally nearly impossible to do as a practical matter.

Which brings us back to the current judicial vacancy.  The person appointed (who will not be a direct representative of the people from whom all governmental power properly is derived) will single-handedly determine whether

-we retain our individual right to keep and bear arms;

-the government and other public institutions can continue to engage in racial discrimination;

-we forfeit our freedom of political speech when acting in concert with others in the form of a corporation;

-unions can forcibly confiscate the earnings of public sector employees who choose not to join;

-non-citizens should be counted for purposes of creating congressional districts;

-the president can single-handedly implement an amnesty of illegal immigrants in defiance of the will of the people through their representatives in Congress;

-businesses must provide contraceptive coverage to employees even when the owners of the business have a profound religious objection to contraception;

-states can require abortion clinics to adhere to certain health standards; and

-the EPA can regulate entire industries out of business in the name of “global warming.”

The result of every single one of those cases is almost certainly going to be determined by one unelected person in a black robe with a lifetime appointment and no accountability whatsoever to the people by whom the government was implemented in the first place.  And that’s why the process of making an appointment to the Supreme Court is now so overwhelmingly political.  The Supreme Court made it so by abrogating the restraint shown by its forebears until the modern era.

So I ask, are we being governed, or are we being ruled?