We’ve heard that the Supreme Court of the United States (SCOTUS) is threatening democracy. For example, the recent Dobbs decision broke democracy – or affirmed it, depending on your point of view.
It turns out that the Court can easily break American democracy, if it’s inclined to. All that need happen is for some justices to stop acting like jurists, and start acting like they took bribes. This article explores:
- The Dobbs decision and democracy
- Why activists need the Court to respond to polls
- How justices can treat the U.S. Constitution like rubber, stretching it at need
- Why an activist court will ruin democracy
- How Christians might resist bad U.S. Supreme Court rulings
What is American democracy?
Whether at national or local levels, America has a republican system of government. Voters select a representative to do the actual lawmaking. That representative isn’t a mere puppet, but is free to act on his or her own conscience.
Having government by representatives, America isn’t a democracy – at least not as it is traditionally defined. In an actual democracy the populace directly votes on all of the legislation. But in our republic we only directly vote for representatives, bond issues, and the occasional referendum. We’ve used “democracy” and “republic” interchangeably for so long that many people think that all that is needed to create a law is to wave a Gallup poll in the direction of the capitol building.
Because of this common use of “democracy,” this article will also describe our form of government as a democracy.
The Dobbs abortion decision does not threaten American democracy
There is much public angst about the recent U.S. Supreme Court ruling on abortion, called Dobbs v Jackson Women’s Health Organization. The dispute started when Mississippi passed a law saying that a baby, one who was at least 15 weeks past conception, could not be legally aborted. This law was challenged by an abortion provider. The issue reached the U.S. Supreme Court, which ruled in favor of the Mississippi law.
In its ruling, the Court also revoked the Roe v Wade decision. It could have both affirmed the Mississippi law and kept Roe, but it didn’t go that route. The result is that state legislatures can pass their own laws concerning abortion.
It’s said that this is the end of the world, that the Court is taking away our democracy. According to Jill Filipovic, writing for the Guardian, it’s anti-democratic to allow democratically elected state officials to pass laws about abortion. In her words:
Because, with this ruling, the supreme court has just signaled its illegitimacy – and it throws much of the American project into question. … And now, this court, stacked with far-right judges appointed via ignoble means, has stripped from American women the right to control our own bodies.
What the U.S. Supreme Court actually did was insist that a right to abortion must rest not on judges’ whims, but instead on laws passed by legislatures. So the Dobbs decision affirms the democratic process, and its opponents are talking through their hats.
The SCOTUS is still looking to the U.S. Constitution, and not to the polls
U.S. Supreme Court Justice Elena Kagan thinks that the Court must make its judgments with one eye on public opinion polls. She said:
I’m not talking about any particular decision or even any particular series of decisions, but if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy.
Justice Kagan’s statement is loaded with problems. Regarding “public sentiment,” which public should be considered? And why should a survey of the general public hold more weight than the words of the U.S. Constitution? Do survey companies limit their polls only to known constitutional scholars?
For example, a recent Reuters poll headline said that Democrats hate the Dobbs decision. Does that mean that the Dobbs decision is a travesty? Note that this same Reuters poll also says that Republicans love the decision just as strongly as the Democrats hate it. Does that mean that the decision is actually a resounding bit of wisdom?
The phrase “the supreme court has just signaled its illegitimacy” reveals the hidden agenda. Says Jonathan Turley:
So why is Roberts’ 60% approval rating so crushing for democracy? Because, Levitz explained, “If the Court’s right-wing majority finds that it can continually push the boundaries of conservative judicial activism without undermining its own popular legitimacy, then the consequences for progressivism and popular democracy could be dire.”
Unpack that line for a second.
First, Levitz is saying that the goals of the left would be scuttled if the court or its members are popular. For over a year, many in the media and U.S. Congress have launched unrelenting attacks on the court and pushed an agenda to pack the court to create an instant liberal majority. They know that court-packing is widely detested by the public (as it once was by President Biden and many on the left). In order to achieve such a goal, the justices must be demonized like much else in our age of rage. But it is not working if 60% of the public actually like the chief justice.
It is also worth noting that the stated goal is “popular democracy.” The term is often associated with “direct democracy,” where citizens have unfiltered and direct say in government decisions. It was the model expressly rejected by the Framers in favor of our system of representative democracy.
You can construct a poll to get whatever result you want. Forcing judges to follow public poll results would endanger the republic, catering to the loudest screamers of the majority. “Justice by polling” doesn’t describe a society, but rather mob rule.
We’re fortunate that, for now, our U.S. Supreme Court decides cases by looking to the U.S. Constitution, and not to the pollsters. If the Court abandoned written standards, and instead judged by selecting their favorite constituency, it would become a court of injustice (Leviticus 19:15).
Why this push to make the courts follow the polls?
Americans are bombarded with “the sky is falling” claims, that unless we change our ways we’re all doomed. My versions of these claims aren’t reverent, but at least are truthful.
- Critical Race Theory: America is racist beyond redemption, and the only remedy is a complete overthrow of American culture, including its Christian beliefs. Unelected anti-racist scolds, serving as “thought police”, will have authority to veto or prevent anything they don’t like, whether public or private. And “white” people, who comprise 70% of all voters, will love being called “irredeemably racist.” An irresistible combination, for sure!
- Great Reset: Because of a crisis which has suddenly befallen us, the whole world must waste no time, and join together in a one-world government. Just because we spent decades formulating our solution doesn’t mean it wasn’t meant for … whatever this crisis happens to be. But hey, you’ll own nothing and like it!
- Climate change: The world, and all civilization, will die unless we do something now! And this time it’s for real. Not like in 2009 when we only had 50 days to save the world. Not like in 1989 when we had 10 years. And not like in the 1970s when we were all to die from global cooling. Our salvation will certainly be found through increased taxes and forming a socialist dictatorship.
Notice how the solutions always lead to authoritarian socialist government? That’s because these activists are socialists at heart. They’re true believers, and think that socialism will bring America into a heaven on earth. But socialism is dishonest on purpose. Why, then, should we believe them when they promise to solve all of our problems?
Since Americans aren’t buying what they’re selling, how can activists achieve their goals? By cheating the system, getting legal and bureaucratic changes without voter assent. They’ll game the courts, flooding the SCOTUS with fellow activists, justices who believe in a “living constitution,” who will judge by politics and not by law.
A living constitution is no constitution at all
When a case comes before the U.S. Supreme Court, it’s because it involves constitutional concerns. No matter what the case, the justices ought compare its issues with what the U.S. Constitution actually says, and with previous opinions issued by justices. There are two competing philosophies of constitutional interpretation, one of which plays loose with the U.S. Constitution’s words.
Originalism says that the U.S. Constitution must be interpreted according to concepts and meanings in use when the U.S. Constitution was written. The National Constitution Center says this about originalism:
Originalism is a theory of the interpretation of legal texts, including the text of the Constitution. Originalists believe that the constitutional text ought to be given the original public meaning that it would have had at the time that it became law. The original meaning of constitutional texts can be discerned from dictionaries, grammar books, and from other legal documents from which the text might be borrowed. It can also be inferred from the background legal events and public debate that gave rise to a constitutional provision. The original meaning of a constitutional text is an objective legal construct like the reasonable man standard in tort law, which judges a person’s actions based on whether an ordinary person would consider them reasonable, given the situation. It exists independently of the subjective “intentions” of those who wrote the text or of the “original expected applications” that the Framers of a constitutional text thought that it would have.
Living constitution says that the U.S. Constitution can be interpreted according to current political needs. The National Constitution Center says this:
Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution. Living constitutionalists believe that racial segregation was constitutional from 1877 to 1954, because public opinion favored it, and that it became unconstitutional only as a result of the Supreme Court decision in Brown v. Board of Education (1954) – a case in which they think the Supreme Court changed and improved the Constitution. In contrast, originalists think that the Fourteenth Amendment always forbade racial segregation—from its adoption in 1868, to the Supreme Court’s erroneous decision upholding segregation in Plessy v. Ferguson (1896), to the decision in Brown in 1954, down to the present day. Living constitutionalists think racial apartheid could become constitutional again if social attitudes toward race evolve. Originalists disagree and think race discrimination will always be unconstitutional unless the Fourteenth Amendment is repealed.
Woodrow Wilson was an early advocate of a malleableU.S. Constitution, saying:
All that progressives ask or desire is permission – in an era when “development,” “evolution,” is the scientific word – to interpret the Constitution according to the Darwinian principle…
“Hate speech” is an example of twisting what the U.S. Constitution says. The Court recently ruled that even burning a cross, KKK style, constitutes protected speech (R.A.V. v. City of St. Paul). Yet people are being punished by government officials for “misgendering,” or using a “wrong pronoun.” Maybe you’ll soon be prosecuted for doing Christian evangelism.
The U.S. Constitution defines the duties and bounds of our federal government. As the Ninth and Tenth Amendment say, if it isn’t in here then the Federal government can’t do it. But if the U.S. Constitution is as malleable as the living constitution people think it is, then those bounds can be stretched to the ends of the earth. A Darwinian interpretation of the U.S. Constitution enables the most ravenous of governments, and is unable to prevent government excesses.
An activist Supreme Court destroys American democracy
We concluded that the Dobbs decision didn’t threaten American democracy. Rather, it affirmed it, because it put the issues into the elected state legislatures. A corollary statement is that Roe was anti-democratic, because it blocked legislatures from acting on abortion.
If our society wants something to be legal, and recognized as constitutional, then political pressure will arise to achieve that end. But judicial activism destroys American democracy because it imposes changes that a consensus of society doesn’t want, and didn’t pass into law.
The Obergefell v Hodges SCOTUS decision, legalizing same-sex marriage, is an example of how the Court destroys democracy. Consider:
- Our American culture gets its beliefs and practices from European expressions of Christianity.
- Our law comes from this culture, but specifically English common law.
- In this culture and law, marriage is a union of one man and one woman. Deviations from this, such as polygamy, have been shunned and prosecuted.
- The Constitution, and the Fourteenth Amendment, were written in this context. There was no need to define what marriage was, except for those bans on polygamy.
Mr. Obergefell, and his lawyers, pleaded to the U.S. Supreme Court that marriage should be redefined, to permit man-and-man unions. Here is how they phrased their case.
According to Lyle Denniston of SCOTUSBlog,
“the couples are not seeking…a constitutional right to same-sex marriage, or, in other words, a new right created especially for same-sex couples, never before recognized in American constitutional history. What they are seeking, they stress, is an equal right to enter the long-standing institution of marriage, with access to that institution being a ‘fundamental right.’ This simple emphasis on equality of access to an existing right is intended, in the briefs, to support both a right to equal protection under the Fourteenth Amendment and inclusion in the existing marriage right as a matter of ‘due process’ under that same amendment. And, in that sense, this argument is an invitation to the Court not to see what is at issue as a bold plea to fashion a new right out of whole cloth — one of the main arguments made against same-sex marriage.”
As a man, Mr. Obergefell already had a “fundamental right” to enter into a marriage with a woman. But he, and his lawyers, convinced the U.S. Supreme Court to impose on us all a legal invention.
By redefining words, an activist U.S. Supreme Court changed the meaning of all laws regarding marriage. Like the tail wagging the dog, they think America will change its culture and beliefs to match. For their next act, perhaps they’ll impose on us a new definition for sin.
Continuing judicial activism could push America to armed conflict
It’s said that a society’s laws are the codified version of its values. How, then, to categorize laws imposed by activists? The values that those imposed laws assert are foreign to the culture. However, if such laws are imposed often enough, or are severe enough, then society starts pushing back.
If people realize that they’re losing things they really care about, then pushback can evolve into armed resistance. This is how the Spanish Civil War came about.
- The socialists, when in control of the government, wanted to radically change Spain. They passed laws to confiscate property, and to remove the Catholic Church from its place in society.
- Property owners, the Church, and much of the public didn’t like these moves. They saw what the communists did to Russia, and feared revolution in Spain.
- When an opportunity came to use the Army to thwart the socialists, it was welcomed by the anti-socialists. They thought that war was preferable to what the socialists would bring.
- Fighting in Spain continued for years, and exhausted the country.
Can America become as polarized as Spain was? It seems unlikely that America will erupt in civil strife, but it also seemed unlikely that we’d have activist courts reworking the U.S. Constitution. A society goes to war with itself only when pushed. Even then, the transition from passivity to active resistance requires a spark, some particular circumstance.
If concerted fighting ever starts, then it will likely be costly and hard to end. In America everything is interconnected – electricity lines, pipelines, food transportation from rural to urban areas. Any sort of struggle would interrupt or destroy these pathways, bringing grief to millions. And it wouldn’t be a repeat of the American Civil War, with state against state. The people wanting to change our culture are all over the place, maybe even your neighbors. Animosity could get very personal, very quickly.
The Bible sometimes permits Christians to oppose, with armed might, their evil officials
Resisting your foes can be costly and painful. Yet each of us already has something he or she would fight for, risking life and limb to preserve. Perhaps saving from a fire the lives of your spouse and children? Stopping the blatant theft of your house and life savings? How about fighting to preserve your freedom to worship, and to express your Christianity through your work and life?
For the sake of freedom of religion, there were times where whole Christian communities went to war against their own kings.
- In 1550, Charles V, emperor over Germany, demanded that the Lutherans in Magdeburg give up belief in “salvation by grace.” Resist, and they’d be imprisoned or killed.
- In 1637, Charles, king over England and Scotland, demanded that the Scots worship God only in the Anglican way, conforming to the official church of England. Rather then change their Presbyterian beliefs, the Scots formed armies and fought against the king.
These stories, and why Christians believed that armed resistance was justified, are recounted in exhaustive detail in my article American Christians, Tyranny, and Resistance. Here is a summary of the argument for resistance, taken from the Magdeburg Confession.
First, Christians need not always obey every command of their officials. Quoting the Confession:
. . just as subjects necessarily owe obedience to their magistrates; and children and the rest of the family, to their parents and masters, on account of God; so on the other hand, when magistrates or parents themselves lead their charges away from true piety and uprightness, obedience is not owed to them from the Word of God. Also, when they professedly persecute piety and uprightness, they remove themselves from the honor of magistrate and parents before God and their own consciences, and instead of being an ordinance of God they become an ordinance of the devil, which can and ought to be resisted by His order for the sake of one’s calling.
Second, the Magdeburg pastors believed that Romans 13 required that the government must proactively do good, and never evil.
Authority is an ordinance of God to honor what is good and to punish what is evil (Romans 13:3). Accordingly, if authority presumes to persecute what is good and promote what is evil, then it is no longer an ordinance of God but an ordinance of the Devil, and whoever resists such evil is not resisting God’s ordinance but the ordinance of the Devil.
Third, Christians have always had the option of civil disobedience, with martyrdom being its possible consequence. So where did resisting evil commands by force come from? From the concept of the “lesser magistrate.”
It is when tyrants begin to be so mad that they persecute with guile and arms, not so much the just persons of inferior magistrates and their subjects, as the right itself, especially the right of anyone of the highest and most necessary rank; and that they persecute God, the author of right in persons. . . . and if he himself defends and prosecutes this law with force and arms, so that certain death is laid down as the penalty of those who resist or fail to conform – in such a case, doubtless, no clear-thinking person would have any hesitation about the divine right and commandment that such a leader or monarch ought to be curbed by everyone in his most wicked attempt, even by the lowest magistrates with whatever power they have.
Fourth, this means that when officials of the “greater magistrate,” such as those of the federal government, pass evil laws or regulations, then officials of the “lesser magistrates,” such as those of our state, county, and city governments, should step up and shield their communities from those evils. Even ordinary citizens, those who aren’t officials, have a duty.
It is obvious that no pious or Christian person can bring aid to our enemies either by military means, or by giving plans, money or other things by which our enemies are armed. . . . Therefore, whether you be a magistrate or a subject in any way involved in this war or in the carrying out of proscription, consider to what you are lending your counsel, money, work, body, and even your very life and soul; and to what allies. Is it not to the enemies of Christ and His word?
What is worth fighting for?
The authorities will likely never command something so blatant as “don’t obey or worship God.” But they do seem to be good at commanding small offenses, each one taking a bite from our religious freedoms. As examples:
- Forcing someone, over his own religious objections, to bake a cake glorifying homosexuality.
- School officials hiding from parents that they hire “drag queens” to school to meet, and indoctrinate, students as young as 6 years old.
When your “this has gone too far” moment arrives, I’m sure that you’ll recognize a need to resist evil. Here a couple of issues which I think you’ll also find outrageous, and worth fighting about.
Government steals your children, and the rights to raise them. An ongoing theme for socialists is abolishing the family. This thought is still evident today.
Today, the main backwards role the family plays is the oppression of children, who are subjected to a tyranny of the parents and denied the basic rights which should belong to every human, most importantly the right of free development of the personality.
Their smallest proposals would make parents mere babysitters. Their worst proposals abolish parenting altogether. Says advocate Joe Mathews: “My solution — making raising your own children illegal…” The sentiment among activists is obviously there. Why else would the Virginia governor say “I don’t think parents should be telling schools what they should teach.”
You can read more about this in my article They are Your children, not the State’s! That article was written to encourage parents to monitor their children’s education, and make positive changes about it. But it’s also a warning that you could lose your own children.
You’ve already sweated and slaved, and stayed up long nights, to care for your children, and teach them the difference between right and wrong. You’d fight to keep your children out of the hands of kidnappers and molesters. Would you also fight to keep them out of the hands of government ne’er do wells?
Government steals all of your wealth. We seem to be in an age of envy, and think that taxing “a little slice from the tippy top” of rich people wouldn’t hurt anybody. From this comes a “wealth tax,” where people have to pay the government for the privilege of owning a house, a car, jewelry, and even having money in the bank. Such a tax would be a permanent hole in everybody’s wallet, and over a short period of time render you penniless. Then, lucky you, you’re now a ward of the state (Genesis 47:18-21).
You can read more about this in my article Wealth Tax: the envious enabler of American Socialism. For example, a 2% annual wealth tax would tax away 50% of your wealth in just 30 years. That doesn’t include secondary effects, such as needing to sell off the rest of your holdings just to get the cash to pay your taxes. Over time, the government gets all the wealth and everybody else becomes dependent on the government. Doesn’t it remind you of “… to each according to his needs” of the socialist pledge?
Is it worth something to you to not be a penniless slave to the government? Remember, when they’re providing your food they control your behavior. Or don’t you know of “social credit” in China, and which is seemingly coming here?
Conclusions
The SCOTUS ought to uphold the U.S. Constitution as written (originalism). Instead we have justices who are willing to invent rights. There is also pressure to add many such activist justices, to break our constitutional protections right away and implement things that society doesn’t want.
An activist U.S. Supreme Court could lead America into places that, in other countries, led to civil war. It leads to war because the activists are aggressively pushy, and society pushes back. The best thing for us is for officials, judges, and activists defer to the electorate. Convince the voters of the desired changes. Doing anything else looks like a coup, and won’t be received well.
