The Supreme Court Will Not Save Us

In the Declaration of Independence, the Founding Fathers complained that George III had “erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” Wary as they were of such meddlers, needlers, and bullies, the Founders would shudder at the sight of the modern administrative state. No one is sure how many federal agencies exist. The Code of Federal Regulations contains some 180,000 pages, and many mandates come in the form of binding agency “guidance” papers not published in the code.

Although the Constitution vests “all legislative Powers” in Congress, our lawmakers have handed much of that authority to the executive branch. Congress instructs an agency to act “equitably”; then the agency creates the rules that govern the citizenry’s behavior—that is, the law. Scarcely anyone even pretends to respect Locke’s contention that the people empower their representatives “only to make laws, and not to make legislators.”

Some friends of liberty hope to see the judiciary bring the civil servants to heel. They hope above all that judges will begin blocking the legislature’s efforts to surrender power to the executive. Although the Supreme Court last barred such a delegation in 1935, this year it might declare, in Gundy v. United States, that Congress granted the Justice Department too much discretion in implementing a sex-offender registration law.

Whatever the result in Gundy, however, the Court will never void many delegations. And it will not turn the scale against the administrative state. The bureaucracy is too vast, too strong, too obdurate.

The belief has taken root in every elevated mind that the judiciary is the republic’s great protector. It was not supposed to be so. Those of the Founders who endorsed the power of judicial review agreed with Justice Iredell that it is a “delicate and awful” instrument reserved for “a clear and urgent case.” The judiciary was to block only the most obvious constitutional violations. It was to thwart another branch’s effort to overthrow the Constitution altogether.

But our federal judges, wrote Brutus, Anti-Federalist of New York, “are independent of the people, of the legislature, and of every power under heaven.” “Men placed in this situation,” he observed, “will generally soon feel themselves independent of heaven itself.”

The Court’s role has advanced far beyond what even Chief Justice Marshall could have imagined. It is not just that some of the justices read the prejudices of their class into the Constitution (though they do); it is that the Court declares laws and acts unconstitutional, often by a vote of five to four, as a matter of routine judicial business.

The Court should do less, not more. It should release power to the other branches, not (except in a “clear and urgent case”) moderate the flow of power between them. None of the three branches, Madison wrote, may “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” These are words to live by.

Madison and Jefferson expected the three branches to share the task of interpreting the Constitution. Government officials still swear, in accord with Article VI, clause 3, to bear the Constitution true faith and allegiance. The question arises therefore why Congress so readily forfeits power in defiance of Article I.

The answer is an involved tale, one that touches on the rise of party spirit, the advent of the New Deal, and the triumph of the interest group. But most of the Founders, upon hearing the story, would draw a simple conclusion. These men were students of history; and history’s first lesson, they believed, is that a nation cannot endure without virtue. A republic’s leaders must place what is right above what is easy, what is proper above what is pleasing.

The opposite of virtue, the Founders thought, is corruption. Corruption is stoking a sense of grievance, entitlement, or dependency in others. It is striking heroic poses instead of maintaining the roads. It is letting the state spend money it does not have. And it is distorting the fundamental law to achieve a political end. “So long as we are a young and virtuous people,” said Hamilton, the Constitution “will bind us together in mutual interests, mutual welfare, and mutual happiness.” “But when we become old and corrupt,” he warned, “it will bind us no longer.”

Our Founders were sons of the Enlightenment; they trusted in reason and in nature’s God. It is hard not to wonder whether, given a glimpse of our day, some of them would lament the effect of untrammeled doubt. “Of all the dispositions and habits which lead to political prosperity,” Washington wrote in his Farewell Address, “religion and morality are the indispensable supports.” The value not only of religion, but of rules, of duty, of virtue, must stand to some unknown degree upon faith. Ours, meanwhile, is an ever more faithless society.

Did the men who launched our nation always embody their ideals? Did they invariably confirm the worth of the “sacred Honor” they invoked at the close of the Declaration? Obviously not. They owned slaves. They dueled. And, of course, they were no strangers to vicious and underhanded political tumult. For those who treat modern sensibilities as hegemonic, the Founders’ flaws are blinding. Even those who most admire the founding generation must, when confronted with its inconsistencies, admit the difficulty of saying anything conclusive about how ideas affect conditions in any era.

We, however, are determined to learn whether restrained, responsible, disciplined—in a word, constitutional—government can long survive the death of civic piety.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on February 26, 2019 at 09:04:05 am

Excellent piece.

It may be, SCOTUS will not have the moral authority to confront the Congressional delegative affront to the Constitution until it first confronts its own affront to it.

When SCOTUS adopted as its favorite son, Deference, it disowned its parent, Constitution. Thereby, it delegated, abrogated, its own sole Constitutional duty, (and in so doing, violated it twice, (Article III & 5th Amend.)), to render independent and unbiased decisions in every case that comes before it; and, to do so, according to preset reason (Constitution), and nature’s God (the law that underlies it) - each plainly written, the former on paper, the latter on every person's heart. To these alone shall SCOTUS defer.

To these alone shall SCOTUS defer. And, rather than defer to the fad, farce, or friction of the present, however abhorrent or adherent to it they personally may be; should they find their inferior selves unable to find it evidently there in the one or the other, they should reject it as in violation of both. And, then strike it, disarm it, and set it marching back defeated, until such time enough people find it meritorious enough a notion to better arm it and enshrine as Constitutional Amendment.

Unarguably, it’s SCOTUS' sole duty (but not theirs alone), to say what the law is, and what it is not. But SCOTUS has instead, too frequently settled on saying what the Constitution "meant to say".

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Paul Binotto
on February 26, 2019 at 10:09:14 am

The judiciary was to block only the most obvious constitutional violations.

I emphatically disagree that this is how it ought to be/have been. That it in fact may have been the expressed intent of the Framers, I can't say at the moment, though I doubt it.

Congress was permitted only specifically enumerated powers. This was the entire point; this was the great innovation. The tendency to successively broaden the definitions of words as a means of extending one's authority is not a uniquely 21st century problem. The Framers were aware of this tendency and did what they could to avert it. But to ensure that the design of the structure is properly operationalized, it has always been necessary for the Court to block all but the most obviously permitted exercises of legislative power. In all close cases, the Court should deny the legislature. This would have been the only way in which to prevent what has evolved over the last 100+ years. Had We the People decided We wanted Our federal legislature to be allowed greater leeway, We would have amended the document.

The same goes for the Bill of Rights. Given its raison d'etre, the bias should always be against the State, with only the most obvious cases of non-violation allowed by the Court. This is the mindset, the principle that should always have guided the Court, always. In 1628 the English had to beg the King to recognize essentially the same rights as are in the Bill of Rights, rights the English believed it was long settled they had. The point of 1789 was to ensure that We the People would never have to so beg our government.

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on February 26, 2019 at 11:39:00 am

Immediately to the right of QET's comment (as of 2/26) is a link to a discussion with John Marini re: his book "Unmasking the Administrative State."

Just a suggestion: But if you want to understand how it is we came to be where we presently are AND the profound and deleterious effect upon the American Regime, you may wish to purchase this fine book.

Hint: Much of our current troubles may be traced to the "cowardice of the Legislative."

How bad is it?

One may recall the rather apt phrase, "The Continuing Campaign."
I would suggest that it is even worse than an ongoing campaign. This "cowardice", this unwillingness to confront factions and interest groups has corrupted the very LAWMAKING process reserved exclusively for the Legislative. for what, if not akin to a 'campaign promise" is current Legislative enactments which offer nothing more than illusory but self satisfying, morally edifying empty vacuous intangible *promises* to resolve the latest crisis of the day. While conducive to "vote-getting", I would suggest it is contrary to good Legislative Order and is evidence of the Legislative's (all-too-) willing surrender of it's Article I authorities.

Heaven forbid that we see the passage of a Green New Deal [Legislative] CAMPAIGN promise.

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Image of gabe
on February 26, 2019 at 12:05:32 pm

BTW: Speaking of cowardice vis a vis interest groups, there is this:


Not a single 2020 Democrat presidential hopeful voted to support protections for children that have survived an abortion.
Irrespective of one's position on abortion, can we not at least recognize that the child in these instances is, in fact, a PERSON and is afforded all those rights and protections afforded by the constitution.

COWARDICE is the hallmark of the Legislative Branch.

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Image of gabe
on February 26, 2019 at 12:07:53 pm

Since NO ONE of the 3B Society can't even quote the 1st Paragraph or equates the Constitution to reading in the personal moment of toilet time (enhance the term Ninth Circus), I would not be convinced that the prodigy of John Marshal, Thomas Jefferson, or John Adams be hindered by thoughts of limitations. The current example of the Pres. Trump and the common utterance of the paid for Hillary memo is not a topic of mention or defamation by those thought to be independent minded. I just read the author's words. I thought they were cogent and thoughtful. I also spent time reading Hillsdale College online course regarding the Federalist Papers. A recommended endeavor for anyone interested in the reasoning and workings of the government. It is with a chilled in my back that I quake at the works of an educated man named Woodrow Willson.

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Image of Matt
on February 26, 2019 at 12:48:29 pm

Any publication that uses infanticide to describe termination of pregnancy is clearly pushing an agenda. So was the Bill. Did you read it? The Bill is a backdoor way to give person-hood to fetuses by using "unborn child" as a defined term. And seriously, is this Bill really necessary? If a child is born alive after a failed abortion (yes, it is a child after it is born), what makes anyone think that a doctor wouldn't give it care? You think they stuff it in a garbage bag? Women don't get abortions for the hell of it. The hypocrisy of the right to life group galls me since nobody seems to care about children or mothers living in poverty.

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Image of MRubley
on February 26, 2019 at 15:07:18 pm

I would refer you to DR Gosnell as a reply to your question, " what makes anyone think that a doctor wouldn’t give it care?"

And there are others just as willing.

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Image of gabe
on February 26, 2019 at 19:38:40 pm

Your argument is a tired as your naiveté is laughable.

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Paul Binotto
on February 27, 2019 at 01:48:57 am

"The love of money is the root of all evil". It is clear that the legalization of the income tax in the 16th amendment has lead Congress to think that it now can use its awesome power to tax to shape society according to their own ends.it is unbridled greed to forcibly take other's money that is corrupting our politics and leading to moral decay.

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Image of ndrew Kohlhofer
ndrew Kohlhofer
on February 27, 2019 at 12:43:12 pm


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Politics & Policy
Why Did Senate Democrats Refuse to Protect Infants?
By Alexandra DeSanctis

February 27, 2019 6:30 AM

Senate Minority Leader Chuck Schumer at a Capitol Hill press conference, March 1, 2018. (Yuri Gripas/Reuters)
They believe that unwanted human beings have no moral status, even after birth

A moral catastrophe unfolded on the floor of the U.S. Senate on Monday. Forty-four Democratic senators voted against legislation that would have required doctors to give the same care to infants who survive abortion procedures that they would give to any other infant.

One after another, Democratic senators took to the floor to smear the bill as an attack on women’s health care, a baseless criticism that they failed to substantiate. In the process, they revealed their belief that allowing unwanted infants to perish after birth constitutes a form of women’s health care.

Senator Ben Sasse (R., Neb.) reintroduced his Born-Alive Abortion Survivors Protection Act in direct response to Virginia governor Ralph Northam’s endorsement of permitting mothers and doctors to let infants die of neglect. “The infant would be delivered,” Northam said, explaining a hypothetical case in which a woman in labor wanted an abortion. “The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.”

This “discussion” is what Democrats voted on Monday to preserve — a discussion not about health-care options for women but about whether or not to extend health care of any kind to newborn infants. With their votes and their speeches, 44 U.S. senators embraced Ralph Northam’s position, which, despite attempting to clarify, he has never retracted.

“I want to ask each and every one of my colleagues whether or not we’re okay with infanticide,” Sasse said at the start of floor debate on Monday. “This language is blunt. I recognize that. It is too blunt for many people in this body. But frankly, that is what we’re talking about here today. Infanticide is what [the bill] is actually about.”

Though Sasse’s bill failed to pass, it succeeded in forcing Democrats to take a stance on infanticide, and though they refused to do so explicitly, the reality of their disgraceful position was abundantly clear.

NOW WATCH: 'Schiff Says Democrats Plan Subpoena for Mueller's Final Report'
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Schiff Says Democrats Plan Subpoena for Mueller's Final Report

During floor debate, Senator Tina Smith (D., Minn.) said that the bill “puts Congress in the middle of the important medical decisions that patients and doctors should make together without political interference.”

Democratic senator Mazie Hirono of Hawaii said it represents the idea that “the moral judgment of right-wing politicians in Washington, D.C., should supersede a medical professional’s judgment and a woman’s decision.”

“It makes no sense for Washington politicians who know nothing about these individual circumstances to say they know better than the doctors, patients, the family,” said Senate minority leader Chuck Schumer (D., N.Y.). “The bill is solely meant to intimidate doctors and restrict patients’ access to care and has nothing, nothing, nothing to do with protecting children.”

“This is how our medical system is supposed to work,” Smith added later in her remarks. “Physicians and patients making decisions together based on patients’ individual needs.”

Democratic senator Tammy Duckworth of Illinois labeled the bill an effort to “bully doctors out of giving reproductive care.” And Jeanne Shaheen (D., N.H.) said the legislation “would interfere with the doctor–patient relationship and impose new obstacles to a woman’s constitutionally protected right to make her own decisions about her reproductive health.”
From NRO of 2/26:
Sample statement:
“Conservative politicians should not be telling doctors how they should care for their patients,” Hirono said. “Instead, women, in consultation with their families and doctors, are in the best position to determine their best course of care.”

All of these statements take as their premise a fundamental lie about the legislation. No part of the born-alive bill limits abortion access or regulates abortion methods in any way. It involves abortions only to the extent that the infants in question survived them. Nor does the bill mandate any particular kind of care for these infants; it merely requires that these nearly aborted newborns be afforded “the same degree” of care that “any other child born alive at the same gestational age” would receive."

Read it! The proposed law imposed no restrictions on abortion. It sought only to assure that a child born after an attempted abortion would be recognized as being entitled to care - the same care that ANY OTHER infant would be provided.

Furthermore, if you think that doctors or abortionists do not take specific action to DESTROY / KILL the near-born, just consider what is meant by "intact dilation and extraction" - it is the literal tearing apart of an unborn child. Please do not attempt to pass off your regurgitated idiocy and moral vacuousness as established fact - it reflects only upon the Left's failure to recognize the value of human life and it's steadfast unwillingness to accept any moral restrictions upon their newly defined *rights.*

It is not laughable - it is pathetic.

What is more some of these same Democrats have advanced the proposition (in Nevada, see recently passed law) that IF a doctor determines that care may not be effective, EVEN IF DESIRED BY THE PATIENT, then the care must be denied. How is that for the state not getting involved in the doctor - patient relationship.

One wonders how well you will fare in your dotage when afflicted by some dreadful and incurable disease. Then again, I suppose you may take satisfaction in the knowledge that your kin are only exercising their right to be free of the *burden* that you have become.

so please keep on parroting all the soundbites that you hear. It enhances my perennial sense of bemusement at the current idiocies on display.

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Image of gabe
on February 27, 2019 at 12:45:03 pm

What the heck was that. How did all that copy get pasted above.

Only comments intended were from : "From NRO 2/26.


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on February 27, 2019 at 13:34:54 pm

Reason is not everything. It can be flawed without the moderating influence of unconditional trust in God and the Holy Spirit. Proverbs 3:5-6 says "Trust in the LORD with all thine heart, and lean not unto thine own understanding. In all thy ways acknowledge him, and he shall direct thy paths."

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Image of Peter Aiello
Peter Aiello
on February 27, 2019 at 13:45:59 pm

What followed "From NRO 226" was well worth the few seconds required to read the copy pasted before.
Very well worth it and much needed.

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Image of Latecomer
on February 28, 2019 at 00:30:14 am

[…] The Supreme Court Will Not Save Us Corbin Barthold, Law and Liberty […]

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Image of PowerLinks 02.28.19 – Acton Institute PowerBlog
PowerLinks 02.28.19 – Acton Institute PowerBlog
on March 02, 2019 at 19:44:47 pm

[Do]"you think they stuff it in a garbage bag?

WELL ACTUALLY THEY DO AS EVIDENCED BY THIS PIECE AND A STING VIDEO PERFORMED ON PLANNED PARENTHOOD wherein the abortionist tells the "mother(?)" to simply flush the child or put it in a bag. Also, note how these late term abortionists assure the questioner that THEY WILL MAKE CERTAIN THAT THE BABY DOES NOT SURVIVE!


So let me add with my own form of intolerant language. May all of you who support infanticide suffer a fate akin to that of the newly born aborted child when you reach a stage of incapacity such that others may decide that you are unwanted.

At long last, you insufferable equality moralizing reprobates, Have you no sense of shame?

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Image of gabe
on March 02, 2019 at 19:54:03 pm


read 'em and weep as these are the cards that your abortionist friends have dealt you whilst you try to form an apologia sufficient to obfuscate the actual behavior of late term abortionists. See below:


Please note the comments from abortionists who tell a woman asking what happens if the abortion fails:

1) Put it in a bag or flush it down the toilet.
2) We will assure that no birthed baby from a failed abortion will survive.

Perhaps, you should read the law AND review the evidence of the practices (infanticide) of late term abortionists.

May you enjoy your progressive moral superiority as human children are sacrificed on the altar of "f-ing" *choice.

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Image of gabe
on March 02, 2019 at 19:56:13 pm




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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.