America Must Build a Wall — in the Senate, Against Constitution-Busting Judges

By John Zmirak Published on August 20, 2016

The best reason to vote for Donald Trump, as many have said, is for voters to gain some control over the influx of scofflaws with no respect for the American system of government, who impose upon us an alien agenda and threaten our precious freedoms.

By this, of course, I mean the flood of Harvard, Stanford and Yale law school graduates who have seized our country’s courts.

When loudly “pro-life,” “conservative” senators vote to confirm the likes of Sonia Sotamayor or Elena Kagan, they are granting an amnesty to the worst of kind of law-breaker: a judge who presumes to rewrite the U.S. Constitution to suit her own elitist whims.

A Dictatorship of Five Ivy League Lawyers

The sane judicial minority that still remains on the Court is profoundly alarmed at this development. Justice John Roberts has warned that the U.S. is essentially being governed not by the people, but by “five lawyers.” Justice Clarence Thomas said of the most recent abortion decision, “As the court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.” The late Justice Scalia said this of the Obergefell decision imposing same-sex marriage on 50 states and threatening Christian’s First Amendment freedom:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. … This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

The refusal to vote on Merrick Garland this year was welcome, but its pretext was weak. Why should we confirm judicial activists ever again, whether or not it’s an election year?

Why We Lose Over and Over Again

Conservatives’ only real influence on how our allegedly representative government will act on our most crucial freedoms — such as the exercise of religion, or self-defense, or political speech — is exercised in the chaotic scrum of the party presidential primaries. Those aren’t even official elections, regulated by our laws, but a mishmash of caucuses, conventions, and largely “open” primaries whose Byzantine rules are set by private organizations — political parties.

If the GOP has nominated someone with some commitment to defending the Constitution, and if we elect him, and if he wages the tough political fight to ram through a solidly Constitutional nominee against a brick wall of Democrat knee-jerk opposition … then we have our liberties. That’s a very long list of ifs.

When the left wins elections, Democrats always loyally serve their base of radical elitists and angry, grabby minority groups, and pick some judicial activist. Most Republicans dutifully vote to confirm him, as if this were some lame exercise in a high school civics club.

Then the leftists on the Court start looking for loopholes, ambiguities, or simply blank spots in the text of the Constitution, where they can scrawl the newest items on their wishlist. Once they have done that, imposed on us abortion, or same-sex marriage, or some other monstrosity, a fair percentage of Republicans will dopily go along, calling this outrage “the law of the land.” Big corporations will get behind it.

Leftists Amend the Constitution Many Times Each Year

Then we have to start all over again, trying desperately to rejigger our lawless corrupted courts, or else try to amend the Constitution, to say that it actually means what it meant in the first place. Meanwhile, party elites tell us to “move on,” because this (whatever it is) is “not a hill to die on.” I am glad that Americans didn’t say that of Bunker Hill.

Our current quasi-dictatorship of appointed philosopher kings is the opposite of what our Founders had in mind. In fact, they risked dying on the gallows as traitors to King George III in order to tear down a far less oppressive and arbitrary system.

Our Founders made the Constitution very difficult to amend precisely to avoid a constant, disruptive flux in our basic principles of law, driven by demagogues or elites. But judicial activism has made such changes easy — just get five lawyers together in a room to make a deal — while restoring the Constitution’s actual meaning is virtually impossible.

As Justice Scalia pointed out, back in the 1910s, proponents of women’s suffrage knew that they needed to change the Constitution. They didn’t try to pack the Supreme Court with creative judges, who would read between the lines of the “living” Constitution and discern the latest feminist twist on Kantian legal theory. No, they got down to work, and honestly jumped through the long series of hoops that the Founders set up, winning votes in Congress and three quarters of the states.

When the Equal Rights Amendment failed while Roe v. Wade succeeded, the left learned its lesson. There will never again be a left-wing amendment pushed for the U.S. Constitution. Every such change will simply be discussed in Ivy League faculty lounges, demanded on NPR, then imposed on us by decree.

Conservatives Need to Build a Wall

If we care about this country and our children, we need to build a wall in the U.S. Senate, consisting of one-third plus one of that body, committed to “Borking” any court nominee who does not have a solid track record of Constitutional decisions. That wall must be willing to reject every nominee whom Hillary Clinton is remotely likely to offer, year after year, and pay the political price. We might lose a senator here and there; conservative donors should make sure that casualties in this crucial war for freedom are richly rewarded and honored for their sacrifice. Think of them as wounded veterans.

Such a Freedom Wall might also need to constrain a victorious Donald Trump, whom many conservatives fear will appoint not Constitutional conservatives, but pliant cronies and hack nonentities.

If Christians and other conservatives of financial means know what they are doing, they are already creating massive super-PACs to back such courageous senators in fierce re-election fights. We should be carefully vetting our own senators’ records, to see if they’re likely bricks for such a wall. We must work in primary races for such senators as Ted Cruz who will stand up even to their party’s nominee, when principle demands it. Men like him must form a wall that is our last legal line of defense.

Given the fact that we live in a wretched judicial quasi-dictatorship, it’s fine if your vote for president is all about Supreme Court appointees this year. Just make sure that your Senate votes, your political activism, and your donations, are all about SCOTUS too. Then if we build the Freedom Wall, presidential elections won’t be so desperately make or break. Contained by such a wall, a Clinton presidency would not be an almost irreversible catastrophe, and a Trump administration might (despite his best efforts) leave behind a legacy we can be proud of.

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