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January / February 2004

Can Judicial Tyranny Be Stopped?

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by Michael P. Farris, Esq.

"An enlightened people will never suffer what was established for their security to be perverted to an act of tyranny."

- George Nicholas
June 4, 1788
Virginia Convention on the Ratification of the Constitution

George Nicholas was the first Virginian to fire a shot against British aggression in the War for American Independence. Nicholas was also the first substantive speaker on the floor of the Virginia ratification convention, after the preliminary formalities had been concluded. His statement, quoted at left, is from that opening speech.

It is fair to catalog this statement as one of America's "first principles," one that is desperately wanting in American public life today.

We hear, with increasing frequency, the term "judicial tyranny." Is this a fair charge? Have the courts of the United States—the Supreme Court in particular—which were established for our security, perverted their authority into acts of tyranny?

There's a difference between disliking the outcomes of particular decisions and finding a track record of true judicial tyranny. Roe v. Wade and Lawrence v. Texas (the June 2003 decision on the rights of homosexuals), for example, are among the leading contenders for the most unpopular decisions among conservative Christians. But while individuals may not like a particular decision, is it fair to make the general charge that such decisions are acts of judicial tyranny? Even more, is it fair to contend that judicial tyranny is typical of our courts rather than the exception?

To fairly evaluate the role of the judiciary, we need to know two things from the era of the Founders: (1) What role did they intend the Supreme Court to play? and (2) What did they mean by the term tyranny?

The Founders' intent
Some conservatives argue that the Founders never intended the Supreme Court to have the power to declare acts of Congress, the president, or state legislatures to be unconstitutional. Is this correct?

James Madison gives us the key to all questions of original intent. He said,

If we were to look . . . for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.

Thus, we need to see what the ratification delegates' view was if we want to understand the scope of the power that the Founders intended to give to the judiciary. Fortunately, the evidence on this point is quite clear.

Oliver Ellsworth said the following at the Connecticut ratification convention:

If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the general government, the law is void; and upright, independent judges will declare it to be so.

What were Ellsworth's credentials? He was a judge of the Connecticut Supreme Court when called to serve in the constitutional convention in Philadelphia. He was elected to serve in the Connecticut ratifying convention. He was later appointed to be the chief justice of the United States Supreme Court.

Ellsworth's was not the only voice to make this point clear. James Wilson of Pennsylvania made the same point at that state's convention. He said,

If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates.

Wilson, like Ellsworth, was qualified in three ways—he was a member of the constitutional convention, a member of the ratifying convention, and later a justice on the Supreme Court.

The Supreme Court was created as an instrument to secure our liberties. If Congress enacts a law that goes beyond the powers enumerated in the Constitution, it is the duty of the Supreme Court to protect our liberty by stopping this usurpation of power.

Judicial review
Some suggest that the Supreme Court should not have the power to declare laws to be unconstitutional. (This power is called "judicial review.") Without judicial review, however, if a state declared homeschooling to be illegal, no court would have the power to declare such a law unconstitutional. Or, if Congress declared the Anglican Church to be the official church of the United States and decreed mandatory attendance by all residents, that law would be binding until the citizens could elect new members of Congress who would repeal such laws.

We can be reasonably certain that a majority of citizens could be found to vote out a Congress that established the Anglican Church. It is far from certain that a political majority could be mustered to throw out a Congress or a state legislature that banned homeschooling.

It is clear that the Founders intended the Supreme Court to have the power to declare void any law that goes beyond the text of the Constitution. When a law is based on a power that Congress is not supposed to have, that law is unconstitutional. When a law invades a sphere of protected rights, that law is unconstitutional.

All of this is necessary for the security of our liberty. There is a difference between a usurpation of power and a perversion of power. The Supreme Court was intended to have the power of judicial review; thus, this power in general is not a usurpation. But the question remains, has this power intended for our liberty been perverted and used for acts of tyranny?

Which brings us to our second question: what did the Founders consider to be acts of tyranny?

The place to start is with the Stamp Act, a revenue measure enacted by the British Parliament in 1765. Until that time, taxes in the colonies were generally levied by the various colonial legislatures.

The American resistance to the Stamp Act was based on a principle of self-government: only our own elected legislators have the moral authority to make laws that we must obey.

"Tyranny!" was the cry against the Stamp Act. Thus, we can conclude that the general definition of tyranny is any act by a governmental body that asserts the power to make a law over a people—other than the people's own duly elected representatives who are acting within the scope of their delegated authority.

John Locke said it this way:

All power exercised over a nation, must have some beginning. It must either be delegated or assumed. There are no other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.

The Supreme Court was given the power of judicial review. But it was not given the power of legislation, nor of constitutional revision. Only Congress and the state legislatures were given the power to make ordinary laws or to revise the supreme law of the land—the Constitution. If the Supreme Court legislates, it is usurping legislative power. If the Supreme Court changes the meaning of the words of the Constitution, it is an act of tyranny. Only Congress and the state legislatures have the power to change the Constitution.

The U.S. Supreme Court building in Washington, D.C.
The road to tyranny
But some may ask, "Isn't the Constitution a living document?" That is what we learned in our public school social studies courses. But the phrase "living Constitution" has been grossly misused to the point that it no longer has any validity.

The Constitution is "living" in the sense that the original principles should apply to new facts. For example, the Fourth Amendment protects our "papers" from unreasonable searches and seizures. What about computer records that are still on the computer and not yet on paper? Are they protected? Of course. This is simply the application of an old principle—our written information is protected—to a new set of facts. Whenever we have the application of old principles to new facts, that is a proper understanding of the living Constitution.

Also, whenever we amend the Constitution by the formal amendment process, that too is proper and quite consistent with all of the Founders' theories of self-government. The Constitution is alive in the sense that it may be changed by this formal process requiring the assent of two-thirds of each house of Congress and three-fourths of the state legislatures.

What is generally meant by "living Constitution" today, however, is the discovery of entirely new legal principles. Reproductive freedom. Homosexual rights. These are examples of entirely new principles of freedom that cannot be legitimately tied to any phrase in the written Constitution.

Thus, to make absolutely new rights out of whole cloth is a clear act of judicial tyranny. Unelected judges are not just legislating, they are assuming the super-legislative authority of two-thirds of each house of Congress and three-fourths of the state legislatures when they effectively amend the Constitution by inventing new rights.

Judicial tyranny is not limited to the creation of brand new rights. Judicial tyranny occurs whenever the meanings of phrases in the Constitution are perverted to mean something that the people who wrote and ratified the Constitution never intended. For example, the First Amendment says, "Congress shall make no law respecting an establishment of religion." Thus, by its clear wording, the First Amendment applies first and foremost to Congress itself. In fact, Congress has prayers led by a minister every day that it is in session. The First Amendment applies to public schools only indirectly (and through a disputed theory called the "selective incorporation of the Bill of Rights"). In Marsh v. Chambers, a challenge to regular prayer in a state legislative chamber was settled in favor of the prayer. Why? The case was decided based on the historical meaning of the First Amendment. But the opposite result was reached in an Alabama case, Wallace v. Jaffree, involving a "moment of silence for prayer or meditation" in public schools. The mere suggestion of silent prayer was declared unconstitutional.

What explains the difference in the outcomes? In the legislative prayer case, the Court used history and original intent. In the public school silent prayer case, the Court used its own creation—the "Lemon Test"—to evaluate the prayer. If the Court was always tied to history rather than being allowed to create and perpetuate its own tests, then it would function properly to protect our liberties. But a proper use of history is the exception rather than the rule. The vast majority of the cases are determined by use of the Supreme Court's self-created judicial tests. Our liberties, our national morality, and especially our self-government are sacrificed by these tyrannical "tests."

Let's examine Roe v. Wade to get a clear understanding of the difference between history and a judge-created legal test. In Roe, the Court reviewed a great deal of history—some of it relevant and some of it utterly irrelevant. The history of ancient Greece, for example, has almost nothing to offer in terms of the relevant question: "When the 14th Amendment was written, did anyone intend to protect the right of 'reproductive freedom' in the phrase 'no person shall be denied life, liberty, or property without due process of law'?" A second, related question was: "Was an unborn child included in the term 'person' so that an unborn child had the right to life recognized at the time of the adoption of the 14th Amendment?"

It is utterly laughable to suggest that the drafters and ratifiers of the 14th Amendment intended to create a right of reproductive freedom. Abortion was widely illegal in 1868 when the 14th Amendment was adopted and, for the most part, stayed illegal until the decision in Roe.

The relevant historical inquiry focuses on the legal understanding of the term "person" in 1868. In the opening years of our nation, abortion laws were varied because of grossly erroneous science. Medical science thought that the child came alive at "quickening." Science eventually learned that quickening was merely the point when the child was big enough for the mother to feel the baby's kicks and punches—life began much earlier.

The American Medical Association formed a commission to evaluate the practice of abortion in 1857. It filed its report in 1859. The old permissive abortion laws were strongly criticized: "[There are] grave defects [in] our laws, both common and statute, as regards the independent and actual existence of the child before birth, as a living being." The AMA went on to say that an honest judge would call things by their right name and so should the doctors. Their clear meaning was this: abortion is murder.

As a result of this change in medical understanding, a wave of pro-life laws swept the country. The legal principle had always been, "we protect human life." Once science understood the true nature of "quickening," that principle was swiftly applied and abortion was outlawed.

The law that was challenged in Roe v. Wade was passed by the Texas legislature in 1854, enacted as a part of this movement to bring the laws of virtually every state into compliance with the newly discovered medical science of the womb.

Thus, there is no doubt whatsoever that in 1868, when the 14th Amendment was ratified, both scientifically and legally the term "person" included unborn children within our legal standards for the right to life.

A decision based on pertinent American history would have given us a completely opposite result to Roe v. Wade. Abortion laws would not be merely up to the states. Rather, any state that failed to ban abortion would violate the constitutional right to life guaranteed to an unborn child.

Would you be interested to know where I found this history? Every single fact is recited right in the decision in Roe v. Wade. The Supreme Court justices callously ignored the relevant and controlling history in making their decision. Instead, they relied on their precedent that said they had discovered a "penumbra" of the Bill of Rights leading them to the conclusion that reproductive freedom was a new right. The methodology used by the Supreme Court in Roe is closer to voodoo and astrology than it is to law or history.

Unelected judges should not be allowed to change the meaning of the Constitution. When they do, it is a de facto constitutional amendment. This is an act of tyranny.

The decision of Lawrence v. Texas is, I hope, the final straw. This decision ignored American history and law and found a constitutional right to privacy for homosexuality based, in part, on the current practices of Western Europe and Canada. Unless someone can prove that the drafters of the 14th Amendment had the ability to travel in time, it is utterly impossible for the modern practices of foreign states to have influenced those who wrote and ratified any phrase in the Constitution.

In Lawrence, the Court did more than merely constitutionalize homosexual rights. It said that no law can be justified on moral grounds alone. That is a complete revolution. It writes the anti-Christian, dangerous philosophy of libertarianism into the Constitution. In fact, the well-known libertarian organization, the Cato Institute, filed a critical pro-homosexual freedom brief in the Lawrence case. Like all serious libertarians, Cato takes the position that the only basis for law is harm to another—particularly to another's property. Libertarians oppose laws. Every man doing what is right in his own eyes is now effectively the 28th Amendment to the Constitution. From now on, it will be impossible to sustain laws against drugs, polygamy, prostitution, or pornography—so long as they only involve consenting adults.

There is a clear correlation between those who violate the principles of self-government and those who have a radical moral and social agenda. The rule of law is predicated on principles that are clearly derived from the Word of God. Those who hate God's moral standards also hate his methodology for law. Law should be fixed and knowable, not relative, transitive, and situational.

So who's at fault?

We are. Read the words of George Nicholas once again: "An enlightened people will never suffer what was established for their security to be perverted to an act of tyranny."

We have allowed the Supreme Court to pervert its good role into that of a tyrant. We are ultimately to blame.

Frankly, for a long time the problem was that we were not an enlightened people. Most of us have gradually been waking up to the problem. But still nothing effective has been done.

What can we do?
One thing we can do is make sure that both parents and teens learn and understand the Constitution of the United States. We need to be able to make a principled defense of the idea of original intent as necessary to preserving the essence of American self-government. This is why I wrote a textbook called Constitutional Law for Christian Students. I teach it online in both a high school and a college version.

But after we have become informed, what is next?

We need to absolutely demand that our United States senators refuse to vote to ratify any judicial nominee who cannot articulate a clear and principled theory of original intent as his or her judicial philosophy. To help accomplish this, HSLDA is launching a student-based political action group for electing leaders who believe in the principles of our nation's founding. For more information, please go to www.generationjoshua.org.

We need to be preparing our children for political and legal leadership. (This is an additional reason for your students to become a part of the student project I just mentioned.) This is one of the principal reasons I founded Patrick Henry College. We need an army of young people at the top level of the academic world who possess both Christian character and the political philosophy of freedom. When these young people start to move into positions of leadership, the next generation has a far greater chance for a successful return to the principles of America's founding.

The importance of having principled young people reach the highest levels of academics was made clear in another radical Supreme Court decision this past summer. In the Michigan affirmative action case, the Supreme Court noted that fourteen elite colleges produce a disproportionate number of federal judges—including all of those on the Supreme Court. One of the reasons that I believe we can break into this sphere of leadership is that in just its fourth year, Patrick Henry College's average SAT scores place it above about half of these fourteen elite colleges (relative to their undergraduate standards). When PHC has the resources to start a law school, we will want a strongly Christian program. But additionally, we want to be so clearly excellent that we invade the top sphere of law schools just as we are doing in the undergraduate world. In this way, we hope to send a steady supply of new talent who truly have the opportunity to reach the highest levels of the legal arena. Personnel is policy.

Finally, we need to start considering a structural change for selecting federal judges. A management expert recently said, "The system you have in place is perfectly designed to achieve the results you are experiencing."

Judicial activism (another name for judges who rewrite the Constitution) has been a growing cancer in our nation for several decades. Perhaps it is time to reconsider our methodology for selecting federal judges.

A better way
The easiest change would be to eliminate the filibuster rule in the U.S. Senate. If judges were approved by a simple majority vote—not the 60 votes currently required—it would be a victory for self-government in every aspect of the decision.

We need to urge this permanent change. We should not worry about what happens when the liberals are in control of the Senate. Republican Senators almost always vote to confirm Democrat-nominated judges anyway. The principles of self-government and majority rule should be the same in good times and in bad.

If the Senate refuses to do this, more radical measures must be considered.

Many states elect their judges. Generally speaking, I trust the American people to make good decisions about judges far more than I trust the United States Senate. The Senate has had this responsibility for the entire length of its existence, and our self-government has been stolen by the very judges that the Senate has approved. Perhaps we should change to elected federal judges. It is an idea worth exploring. We certainly need to consider term limits for the Supreme Court and other federal judges.

I believe that the American public is far more likely to elect judges like Roy Moore than Ruth Bader Ginsburg. We have to do something to stop the tyranny. It is our duty as enlightened citizens. If you would like to get updated emails on the battle against judicial tyranny, please email me at stop-tyranny@hslda.org. I will send out regular information and alerts on judicial nominations and other opportunities for action.

About the author

Chairman of the Board and General Counsel Mike Farris cofounded HSLDA with Mike Smith in 1983 and served as president through 2000, when he became the first president of Patrick Henry College. Farris is a constitutional lawyer, a published author of six non-fiction works and three novels, an ordained minister, and a leading pro-family activist on Capitol Hill. He and his wife Vickie have ten children and seven grandchildren and have been homeschooling since 1982.