The Judicial Transformation of America - Two views on a timely, scathing critique of judicial tyranny

Book review:

Americans neither want nor deserve societal transformation without representation.

America is at a breaking point. If nothing is done to strip the judiciary of its presumed authority over foundational issues, our representative democracy will disappear. Our ability to restore America from judicial overreach - which includes deleterious immigration policies - will be lost.

Daniel Horowitz, in his book Stolen Sovereignty: How to Stop Unelected Judges from Transforming America, observes that bureaucrats, political elites, and unelected judges are transforming our society, sovereignty, and system of governance without consent. Horowitz observes that:

Stolen Sovereignty is an important, readable, and well-researched book. It's an engaging read, which includes a moderate discussion of relevant case law, oriented toward the lay reader. Horowitz emphasizes that with the election of conservatives to Congress and the Presidency, it is imperative to address judicial overreach before it is too late.

Historical limitations

Horowitz writes that historically:

President Calvin Coolidge reaffirmed this view in his July 4, 1926 speech commemorating the 150th anniversary of the Declaration, that the ideals expressed in the Constitution were immutable:

Horowitz clarifies that:

What a marked contrast to the modern liberal tenet of a "living and breathing" Constitution!

The principle of judicial limitation was first challenged in 1803 by Chief Justice John Marshall in Marbury v. Madison, where the power of judicial review originated. Horowitz notes that:

In 1907, leading progressive Charles Evans Hughes, who served as Chief Justice during the bulk of FDR's tenure, made the more radical statement: "We are under a Constitution, but the Constitution is what the judges say it is." Horowitz remarks how this paradigm has become entrenched in the modern judiciary:

Our unconstitutional Constitution

During the 1970s and 1980s, Thurgood Marshall, on the Supreme Court with William Brennan and Earl Warren, exemplified the paradoxical approach that "the Constitution is unconstitutional," stating:

In other words, Marshall professed that the Fourteenth Amendment completely rewrote the Constitution, maintaining that it is a "living and breathing document."

Yet section 5 of the Fourteenth Amendment explicitly grants Congress enforcement purview, not the judiciary, stating "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Identical provisions are contained in both the Thirteenth and Fifteenth amendments.

One might ask: how then could the courts claim absolute power via the Fourteenth Amendment?

The answer was provided by Justice William Brennan's "ratchet theory." He authored an opinion upholding the power of Congress through section 5 of the Fourteenth Amendment to expand upon the scope of rights expressed in that amendment. As with a ratchet, Congress could move forward in creating new rights, but could not revoke preexisting rights - even if they were established under liberal judicial interpretation of the Fourteenth Amendment. Thus the "guarantees" of the Fourteenth Amendment are to be defined by the courts, not Congress, even if those guarantees infringe on state powers provided under the Tenth Amendment.

As a consequence of this theory, the concept of stare decisis - that is, legal precedent - is one-directional, leading to inevitable judicial tyranny. Horowitz clarifies:

Ratcheting case law

Horowitz investigates a number of high profile cases that reveal how liberal judicial activism has ratcheted up. He points out that the Commerce Clause was never intended to establish federal regulatory activity, yet even in 1829, Madison wrote that it had already been abused. The purpose of the original clause was to break down trade barriers between the states, not to create mandates on the American public. Today it is used in a myriad of regulatory manners, including banning of firearms.

Recently, Chief Justice Roberts interpreted the Commerce Clause as having the power to regulate inactivity in order to preserve Obamacare at all costs. He rewrote legislation from the bench which upheld the Obamacare individual mandate under auspices of the power of Congress to levy taxes, thus compelling an individual to engage in commerce.

Horowitz points out that the Supreme Court's decision to uphold federal subsidies to states with federal health insurance exchanges was an "even more egregious and nakedly political" decision:

Roberts' legislative decision has further enabled the courts to serve as an unelected super-legislature.

Horowitz examines how in the same-sex marriage case of 2015, Justice Anthony Kennedy redefined marriage from the bench and in doing so trampled on the Constitution and our entire system of governance, writing "and so they [the framers of the Fourteenth Amendment] entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning." Here the "we" refers to the courts. Future courts can use this ruling to "discover" new rights supposedly granted by a presumably prescient Fourteenth Amendment. Left-wing social policy, from amnesty for illegal aliens to transgender bathrooms, has now become the domain of the courts.

Horowitz notes that when our founding documents mentioned "rights," they referred to protection from a negative action - that is, imprisonment, fine, or capital punishment without due process. This contrasts with the positive mandate of the 2015 Obergefell v. Hodges ruling on same-sex marriage. Justice Scalia commented in strong dissent that the activist courts have taken this decision away from the people. Horowitz explains that:

Horowitz points out that in legal and prosecutorial terms, homosexuality has been elevated to the status of a national religion. James Madison referred to religious conscience as the most sacred of property rights. Yet bakeries and private farm owners have now been prosecuted - and one might say persecuted - in the name of gay rights. Unelected judges have concocted super rights for special classes that now supersede our most inalienable rights of religious conscience and private property.

Immigration and citizenship

Illegal immigration drastically undermines the sovereignty of a nation-state. Horowitz predicts that we will soon see courts issue judicial amnesty for illegal aliens, even if the political branches of government regain rational commitment to enforcing immigration law.

As explained by John Quincy Adams in 1819, our Founders did not regulate immigration because they did not want to encourage it with fixed policy. Congress began significantly regulating immigration in 1875. In 1882, Congress barred immigrants from China, as well as undesirables who would be a burden or danger to society. The Supreme Court affirmed this right of Congress in 1889. In 1896, the court reaffirmed the legislative authority of Congress to deport legal permanent residents without judicial review. Horowitz notes that this authority remains today regarding deportation of non-citizen Islamists.

During the Great Wave from 1880 through the 1920s, courts humbly recognized that they had no role in immigration policy. Yet within a generation, we have gone from deporting legal immigrants without judicial review to mandating full constitutional rights for illegal aliens, resulting in dangerous criminal aliens being released into the general population without public consent.

Children of illegal aliens are currently granted citizenship via a masterful misinterpretation of the Fourteenth Amendment. Congress has plenary power over immigration, and the amendment itself grants Congress power to enforce the amendment. Horowitz discusses the amendment's infamous "subject to the jurisdiction" clause. He notes that opponents of U.S. sovereignty hang their hats on the 1898 Wong Kim Ark decision, in which Justice Gray interpreted the Fourteenth Amendment as granting birthright citizenship under English common law. Yet this interpretation is antithetical to the consent-based concept of citizenship embraced by America's Founders. Drafters of the amendment quite simply had no intent of providing birthright citizenship to immigrants.

Proponents of Anchor Baby citizenship also rely on a footnote in Justice William Brennan's 1982 Plyler v. Doe opinion. However, that note is tangential dicta - that is, nonbinding comments not related to the case, which ignore 90 years of case law. Horowitz comments:

Horowitz asks us to consider:

Sinking sovereignty

Immigration without assimilation is an invasion. Massive immigration ultimately threatens our sovereignty. It brings with it foreign concepts of government and values antithetical to America's form of government. Our founders never imagined that immigration could be used as a powerful tool to transform society from within.

Horowitz delineates five immigration practices that undermine our sovereignty and dilute our ability to self-govern:

• birthright citizenship
• chain migration
• refugee resettlement
• counting illegal aliens in the census, and reapportionment
• non-citizens voting in our elections.

For example, under chain migration, a single immigrant can trigger an automatic chain of 273 additional immigrants. Horowitz points out that ending chain migration is the single most effective policy step our government could take.

He also recommends immediately suspending refugee resettlement, and forcing Congress to reauthorize refugee programs yearly.

Horowitz notes that counting illegal aliens in the census is doubly detrimental, disenfranchising voting constituents via reapportionment. For example, counting illegal aliens has given California an extra five seats in the House, and has provided Washington and New York each with one extra seat. No one sought approval from the American public before doing this.

Reining in the courts

Horowitz asks: why are judges who have invested themselves with the power to concoct law and change the Constitution not elected? After all, their power now exceeds the power of the entire legislature.

The courts were never intended to have jurisdiction over sovereignty or political questions. The Judiciary Act of 1789 did not grant the Supreme and inferior courts appellate jurisdiction on important issues. It wasn't until 1875 that Congress transferred that authority from state courts. Then in 1914, Congress granted the Supreme Court appellate jurisdiction over cases heard by state supreme courts. Note that Congress has the authority to grant judicial purview, as well as negate it.

As Horowitz notes, we have been brainwashed into thinking the courts are the last word on legislative issues. Yet Congress ultimately does have the final say. Congress has complete power to regulate district and appellate courts. Indeed, the Constitution in Article III, Section 2, Clause 2 specifically grants Congress the authority to regulate and limit appellate jurisdiction of the Supreme Court, stating:

Final observations

As Benjamin Franklin left the Constitutional Convention, he was reportedly asked, "Well doctor, what have we got, a republic or a monarchy?" He famously replied, "A republic, if you can keep it."

A core principle of a republican form of government is that political and societal questions must be addressed by the political branches of government, which are directly accountable to the people.

Today we are confronted with stolen sovereignty, thanks to dogmatic judicial activism. We are quickly moving toward irremediable, non-representational despotism. We are being ruled, not governed, by an activist judiciary. As Horowitz so aptly asks: