By Joe Murray
June 27, 2006

(AgapePress) - The headline of a news story printed in the Seattle Post-Intelligencer says it all: "High Court Saves Some Best Cases for Last." Gena Holland, writing for Associated Press, is once again telling the American people that it is time to gather around the altar of the Supreme Court, genuflect to its wisdom, and wait for the gods of Mount Olympus to throw down their thunderbolts of public policy. Holland writes:

"As usual, justices have left some of the most significant cases to the very end. There are 10 rulings left, on issues from a president's wartime powers, capital punishment, Texas' political boundaries and the insanity defense."

In other words, it is time for the yearly ritual where the elected branches of the federal government abdicate their authority to determine what type of people Americans will be to the "men in black" who have been unshackled from the will of the very people whose fate they will be deciding.

For close to 200 years there has been a constant struggle between the will of the people that is embedded into the executive and legislative branches and the rule of law enshrined by the judiciary. In the struggle to see who can flex the largest institutional muscle, all three branches had always kept their eyes on the prize -- the authority to be the final arbiter of the Constitution.

The first battle in the war for institutional supremacy came in 1803 when Chief Justice John Marshall unilaterally determined that judicial review -- e.g., the power of the Court to serve as the final arbiter of the Constitution -- was etched into the heart of the Constitution. Marshall, thus, had turned a blind eye to the debates held during the Constitutional Convention which rejected such an assertion. This, however, was only half the battle, for Marshall may had laid claim to the power to trump Congress, but he had only a collection of spit-balls to defend his newly created power from executive or legislative encroachment.

Throughout history, great statesmen such as Henry Clay, Daniel Webster and John Calhoun would repeatedly protect and advance the authority of the Legislature to determine America's cultural course. Not surprisingly, such power was also flaunted from 1600 Pennsylvania Avenue. When John Marshall attempted to thwart Andrew Jackson's authority to protect the American people from the Cherokees in Georgia, Jackson thundered, "John Marshall has made his decision, now let him enforce it." And when the High Court tried to quash FDR's New Deal proposals, Roosevelt attempted to pack the Court. The Court received FDR's message and fell back in retreat.

But every dog has its day, and with the rise of Earl Warren, the Court would solidify its position as the Oracle of Delphi. What is even more shocking is that the Court's cultural coup was met with a battle cry one would expect to find on a pigmy battlefield. Hence, in a little under a decade since FDR's passing, Roosevelt's resilience was long forgotten. Thus begging the question -- can a people who forfeit their right to self-determination to a unelected branch of government truly be free? Well, just ask Thomas Jefferson.

Jefferson, in decrying the High Court's self-proclaimed power to become the final arbiter of the Constitution, wrote:

"The Constitution ... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

Translation: a Supreme Court vested with the power to strike down laws passed by the Legislature would result in a despotism that would make King George blush. Truer words have never been spoken.

In the two centuries since Jefferson wrote those prophetic words, the Supreme Court has used its self-proclaimed power of judicial review to: protect the institution of slavery, shove God to the back of the school bus (if not eject Him from the backdoor altogether), give constitutional legitimacy to the killing of well over 40 million unborn children, sanctify the burning of the Stars & Stripes, and bestow First Amendment protections to the bullwhips of Robert Mapplethorp. Hence, in the 200 years judicial review has operated in the confines of our constitutional framework, the cultural well has become the dumping ground for the worst of society's waste. All of this, of course, in the name of judicial review.

Even more compelling, just think what type of country we would live in if the Executive and/or Legislative branches had the backbone to reclaim what is rightfully theirs. Just look at the stats: a little over 50 percent of the American people believe that Roe v. Wade is a bad decision, 73 percent believe that flag burning is not a First Amendment right, 64 percent believe that the Bible should be welcomed in the public schools, 48 percent believe that Christians are being discriminated, and 46 percent believe that America is in the midst of a cultural decay. Translation: the America created by the Court is not the America desired by the people.

As congressmen, reporters, citizens, and yes, even the President, gather around the altar of the Supreme Court, just like a gambler would huddle around his bookie in eager anticipation of the morning line, we must ask ourselves this question -- why has every Congress and White House since the end of Warren's reign been so willing to forfeit their duties to preserve the cultural integrity of the people they have been sworn to represent and protect? Even further, as the waves of judicial tyranny come crashing down on our shores, why have we, as an active American populace, not elected those who could become the Andrew Jackson of our day?

Americans must not sit back and go quietly into the night, for it is evident that judicial review is a tumor attached to our system of government -- a tumor in need of removal. This nation must demand that both Congress and the President step up and place the Court in the Constitutional corner that the Founders reserved for it.. One might ask where would we start? Well, for starters, the President could take a page from Andrew Jackson's playbook and tell the Court that Roe v. Wade will no longer blemish American history. That should raise some eyebrows on the bench.