There has been some talk recently (i.e., over the past century or so) about the need to call a halt to
all the judicial activism that’s been going on, what some people have called
“legislation by judiciary.” The fact is
that Congress (whether it meant to or not) has lost a great deal of the power
the people grant to it in the Constitution, that the Executive (the president)
and, especially, the Supreme Court have picked up.
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| Marbury v Madison in an early political cartoon. |
In order to change things back, we’re going to have to
change the prevailing philosophy of law first.
According to William Crosskey, possibly the greatest constitutional
scholar of the 20th century, the U.S. Supreme Court started us down
the slippery slope by using the perfectly correct decision in Marbury v. Madison in 1803 to start
expanding judicial review far beyond what was ever intended by the
Constitution, thereby vastly increasing the power of the Court.
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| Dred Scott |
This gave them the ability in Scott v. Sandford (1857), the Dred Scott case, to shift the meaning
of the Constitution from natural law to legal positivism, what in religious
terms is called “modernism” — don’t forget that in 1922, in his first
encyclical, Ubi Arcano Dei Consilio (“On
the Peace of Christ in the Kingdom of Christ”), Pope Pius XI stated, “There is
a species of moral, legal, and social modernism which We condemn, no less
decidedly than We condemn theological modernism.” (§ 61.)
Congress tried to take back its power and reverse the trend
to legal positivism — and the taking away of natural rights from human beings
and vesting them in the State — with the Fourteenth Amendment. The Court, however, seems to have been
waiting for this, and in 1873 in its decision in the Slaughterhouse Cases nullified the Fourteenth Amendment. The concept that rights come from the State
instead of being inherent in each human being was the basis of Roe v. Wade in 1973, and has provided the justification for the vast expansion of State power to fill the vacuum left by the loss of property by ordinary people. The new book by retired Justice Stevens calling for changes in the Constitution to take away rights guaranteed in the Bill of Rights is a case in point. Stevens just assumes as a matter of course that the Constitution is a grant of rights from the State to the people, not the other way around.
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| The Crescent City Slaughterhouse Co. |
There is also the slight problem with Roe v. Wade that the infant was born before the Court heard the
case. It was moot. Prior to 1973 the interpretation of the
Constitution was that federal courts, including the Supreme Court, were
prohibited from hearing moot cases. This
interpretation was changed to mean “in most cases,” meaning they could now hear
moot cases whenever they could come up with a rationalization.
Roe v. Wade is
therefore flawed both substantively (rights are inalienable in the human
person, not granted by the State) and procedurally (federal courts cannot hear
moot cases). Unfortunately, ordinary
people lack the power to return matters back to what the Founders intended.
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| Daniel Webster |
All is not lost, however.
“Power,” as Daniel Webster noted, “naturally and necessarily follows
property.” As soon as people have
property, and thus power, we predict that we will see a tremendous sea change
throughout the U.S. and then the world.
It requires constant coercion to suppress human nature, and it is contrary
to human nature to kill your own children.
Thus (in our opinion) within 5 to 7 years after the
enactment of a Capital Homestead Act you will see a vast gain in the Pro-Life
movement. Within 10 to 15 years, you
will see all public support for abortion dry up (meaning no government
money). Within 25-30 years you will see
abortion outlawed except in cases of rape, incest, and where the mother’s life
is presumably endangered. Within 50-60
years you will see those exceptions removed from the law as technology advances
and the last of the Pro-Choice ideologues disappear from public life.
#30#