The Dangers from Judicial Activism

By Jeff Carlson & Hans Mahncke

Our Constitution is founded on certain inalienable rights and as such is fixed and timeless. It is not, as liberals try to claim, a “living document” that changes and “progresses” with time. Because rights under a Living Constitution can be taken away at any point. Which is effectively the same as having no Constitution at all.

As Judge Antonin Scalia stated, “A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.”  Which is precisely why it’s under attack from Judicial Activism. Ronald Reagan knew of this threat when he said “The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it – certainly not to rewrite it.” 

Rush Limbaugh was a bit more direct: “Liberals attempt through Judicial Activism what they cannot win at the ballot box.” So what, exactly, is Judicial activism? Elizabeth Slattery of the Heritage Foundation offers a working definition, noting that it occurs “when judges fail to apply the Constitution or laws impartially according to their original public meaning, regardless of the outcome, or do not follow binding precedent of a higher court and instead decide the case based on personal preference.”

Judge Robert Bork - a Reagan Supreme Court Nominee who died in 2012, was even more forthright on the matter. He stated that “judges engage in activism when their decisions cannot plausibly be related to the constitution they claim to be enforcing.” But he didn’t stop there. He went on to note why it happens and highlighted the inherent dangers in his powerful book Coercing Virtue - The Worldwide Rule of Judges. 

He summarized his thoughts in a 2003 speech to the American Enterprise Institute, noting “That judicial imperialism is now characteristic of just about all Western nations. That fact suggests that the problem is not due simply to some unfortunate appointments to the Court. It is inherent in men and women given power without democratic accountability.” Sounds an awful lot like the current makeup of both the European Union - and the United Nations. Supranational Courts that attempt to exert their authority over and above the US Constitution.

Bork foresaw the headwinds we were facing - and what was facing us. He saw four elements to what he termed Rule by Judges. “First, it is one battleground, and perhaps the decisive one, in a transnational culture war involving a war which displays the same alignment of forces in all Western nations and in which judges everywhere play the same role. Second, and most obvious, activism is a usurpation by judges of powers rightly belonging, in a democracy, to the political branches. 

Third, everywhere judges are forcing their nations’ cultures to the left, breaking down traditional moral codes and the efforts of electorates to preserve those codes. And, fourth, the internationalization of law, often improper in any event, may be a major force in the movement toward international government, which, as we are beginning to see in the European Union, is likely to be authoritarian, if not, ultimately, tyrannical.” Bork spoke these words 21 years ago.

Bork also exposed the long-term goal. To subordinate our Constitution to International Law. As he warned, “The internationalization of law, particularly constitutional law, is further along than you may think…The problem is not merely anti-Americanism abroad; it is also the American intellectual class, which is largely hostile to American power, and uses alleged international law to attack the morality of its own government and society. 

International law thus becomes one more weapon in our domestic culture war…It is dismaying to see the United States Supreme Court beginning to take guidance from and to cite foreign constitutional decisions…We seem headed for a homogenized international common law of the Constitution.” Judge Bork was warning of the ongoing battle for our national identity  – our nation and our culture – through judicial control of law. He was warning of the erosion of our Constitution. Bork was also referring to the increasing influence of what he called the “Elite Modern Liberals” or “Olympians” – whom we call Globalists.

Bork concluded this segment of his speech by noting that “the trends I have been describing are rapidly changing the form of our government and of foreign governments.” Bork also warned repeatedly of the primary tool of the Olympians: “The most powerful educational and political weapon in the Olympian’s arsenal is the United States Supreme Court and the inferior federal and state judiciaries. Over time, the courts tend to adopt the values of the dominant culture, and that culture today, and for the foreseeable future, belongs to the Olympians.”

Bork continues, “The reason the judiciary is such a valuable ally to any class or political movement is that the courts, when purporting to speak in the name of the Constitution, even if they speak falsely, are the only institution in America that claims absolute finality for its decisions and is accorded that superior status by all other bodies. The Constitution provides no check upon the courts other than the highly uncertain authority to appoint new judges when vacancies occur.”

Bork rightly noted that control of the Courts is “the ultimate political prize and its decisions the most potent weapons in our ongoing political and cultural struggles.” Bork, unlike most conservatives, foresaw the Left’s politicized seizure and ultimate transformation of the Judicial System - bringing us to our current state of Lawfare that is being brought to bear against opponents of the establishment regime. 

This also plays into the current illegal immigration push that we are witnessing in real time. That’s happening, in part, because their ultimate goal is to transcend borders - and to transcend nations. This cuts to the heart of their relentless attacks on our Constitution. The long-time impediment to the broader implementation of Marxism, Communism & Globalism has been the US Constitution. By definition, it refuses to bend to Supranational Laws & Supranational Courts. It is a shining beacon for other nations. That is their target. It always has been.

Which is precisely why the central tenet of Globalism is the concept of “global rule of law,” under which nation-states cede judicial authority to supranational courts. It’s why Globalism promotes globally centralized control of laws, foreign policy and monetary policy. Unlike Capitalism, Globalism inherently blends rule of law with rule of man. Globalism comes into existence through the ownership of laws. And through the ownership of law, Globalism gains ownership of nations. 

Think about it this way. In order to maintain a national identity a nation must first maintain self-governance and full sovereignty. Globalism seeks to break national identity by subsuming national laws. Ultimately, preservation of national or sovereign law is the key to preventing Globalism. Which means our Constitution must not only be revered – it must be defended. For it is our Constitution that protects us – and our Republic.  But our current status as a Republic is tenuous at best. 

As Bork wrote, “My thesis is uncomfortable, but I think it is undeniable: America today is only partially a republic and, beginning about 50 years ago, has steadily become less of one….it is certainly arguable that our greatest long-term threat comes from within.” Unfortunately, Judge Bork was right. And obviously prescient. He’s also referring to a process. A dangerous, but patient one. 

Antonio Gramsci, an Italian Marxist philosopher, created the Theory of Cultural Hegemony – the way in which nations use cultural institutions to maintain power in capitalist societies. Gramsci felt that in order to change society, the entire value systems of Societal Institutions must be overturned. This would require the introduction of an entirely new set of cultural values and beliefs – Counter Hegemony. How do you truly change Culture? You change it by removing the identities of Culture. Change the way institutions work – change the family, church, school and ultimately the law – change social norms and beliefs – and create a new morality. Gramsci embraced gradualism – a policy of gradual reform as a means to his end. 

Gramsci recognized that his process must be lengthy, methodical and persistent. He advocated evolution over revolution – or as it was later termed, “a long march through the institutions”. A slow transformation from within. Marxist/Socialist philosophers – led by the Frankfurt School – brought Gramsci’s teachings to the United States. They employed a technique called Critical Theory – a social theory oriented toward critiquing and changing society as a whole. 

The point of the theory is to criticize every traditional social institution as a means to breaking down Western Culture. Though they did not coin the term, Critical Theory provided the origin of Political Correctness - and Critical Race Theory. The goal of the Frankfurt School was to move America gradually to the Left using the precepts of Gramsci’s Counter Hegemony, Gradualism and the practice of Critical Theory. Changing the Culture of America through the “long march through the institutions”.

Judge Bork repeatedly warned of this cultural erosion - this threat from within, noting that “Olympianism is a secular religion which does not recognize itself as a religion. Its acolytes, until recently concentrated in the universities and the mainstream media, claim superior knowledge which they will share with, and if necessary impose upon, the rest of us. The bad news is that this class is growing and taking root in the general population, both here and in all the industrial democracies of the West. [Resulting in] an unjustified diminution of democracy, the erosion of national sovereignty, and a judicially imposed movement of the culture to the left.” 

The concept of national identity stands firmly in the way of Globalism. But in order to maintain national identity you must first maintain self-governance and full sovereignty. Which is precisely why Globalism seeks to break national identity by subsuming national laws. Ultimately, preservation of national or sovereign law is the key to preventing Globalism.

Judge Bork was right about so many things - and had incredible foresight in regards to what was taking place within our country. With hindsight it's easy to see why Democrats tried so hard to successfully keep Judge Bork off of the Supreme Court. His failed nomination to the Supreme Court emboldened the Left, ultimately leading to the contentious, highly politicized affairs that we see today. 

Tom Goldstein, publisher of the popular SCOTUSblog, noted that Bork’s nomination “changed everything, maybe forever. Republicans nominated this brilliant guy to move the law in this dramatically more conservative direction. Liberal groups turned around and blocked him precisely because of those views. Their fight legitimized scorched-earth ideological wars over nominations at the Supreme Court, and to this day both sides remain completely convinced they were right. The upshot is that we have this ridiculous system now where nominees shut up and don't say anything that might signal what they really think." 

We could use another Judge Bork today.