The facts and evidence presented here prove that the Republican Party supports judicial dictatorship.

 "It is natural for man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth [...] For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth, to know the worst, and to provide for it."

      Patrick Henry

Forsaking hopeful illusions, risking anguish, Christians must accept the painful truth - we live under judicial dictatorship - and Christians must provide for it - by our resistance.

The Sixty Years of Supreme Court Edicts Before Kelo

The Supreme Court’s latest exercise in Constitution shredding, Kelo v. City of New London, has generated more than the usual outrage. In Kelo, John Paul Stevens, appointed by the Ford/Rockefeller administration, opined that government could take private residential property for any purpose whatsoever. Republican appointees Stevens, Souter and Anthony Kennedy agreed with Clinton appointees Breyer and Ginsburg that it was obvious any government use of property was a “public use.” Their holding erased the Fifth Amendment’s “public use” limitation on eminent domain. The Kelo decision gave new meaning to the phrase “hitting home.”

But to informed observers of the judicial dictatorship, Kelo was no surprise. For at least fifty years, Supreme Court has not permitted the text of the Constitution to interfere with its dictatorial predilection to aggrandize the power of government and diminish the rights of the individual.

A brief litany is in order. In Wickard v. Filburn (1942), the Court held that Congress’ Constitutional power to “regulate Commerce among the Several States”, allowed it to regulate the wheat a farmer grew on his own land for his own consumption. In Everson v. Board of Education (1947), the Court held that the First Amendment required State and local governments to erect a wall separating Church and State whereas the text of that Amendment applied only to “Congress” and made no reference to “Separation,” “Church” or “State.” In Roe v. Wade (1972), the Court created a right to abortion and held that unborn children were not persons whose lives were entitled to protection under the Fourteenth Amendment. In Sternberg v. Carlson (2000), the Court expanded the right to abortion to encompass the right to suction out a partially-born baby’s brains. In Grutter v. Bollinger (2003), the Court held that government could practice racial discrimination against European-Americans to achieve “diversity”, even though the Fourteenth Amendment prohibits denying “equal protection of the law” “to any person” and doesn’t mention “diversity.” In Lawrence v. Texas (2003), the Court found in the Constitution a right to homosexual sodomy, whereas, mysteriously, no such right was detected 17 years previous in Bowers v. Hardwick (1986).

Republicans are more to blame than Democrats

It would be folly to place blame for fifty years of Constitution shredding solely upon the Democratic Party. Since 1952, Republican Presidents have put fifteen Supreme Court Justices on the bench. Democratic Presidents account for only six, and only two since 1968.

Therefore, since 1952, the Republican Party bears more than twice the blame of the Democratic Party for installing our judicial dictatorship.

On the few occasions when Republican Presidents did nominate ‘strict constructionists” to the Supreme Court, Republican Senators often made sure they were not confirmed. The best example dates from 1969, when Richard Nixon nominated Southerner Clement Haynesworth to the Supreme Court.

Even though his enemies conceded that he was qualified, Haynesworth’s nomination failed because seventeen Republican Senators voted against him, torpedoing his confirmation. Republicans also shot down Nixon’s next nomineee, Southerner G. Harold Carswell.

Nixon was not a culture warrior; he was a pragmatist. Continually under heavy fire from the left, he realized he could not fight a two-front war, one against the Democrats, the other against the Rockefeller Republicans in his own party. So Nixon became a Rockefeller Republican.

In 1971, on the advice of Rockefeller confidante Warren Burger, Nixon appointed Harold Blackmun to the Supreme Court. By a vote of 94-0. Blackmun’s nomination was unanimously confirmed by every Democrat and every Republican in the Senate.

In 1973, Blackmun went on to author the Supreme Court’s infamous decision in Roe v. Wade, legalizing the crime of abortion and resulting in the deaths of 40 million unborn children.

The pattern continued in 1986 when six Republican Senators voted against strict constructionist Robert Bork. But President Reagan’s replacement nomination, Anthony Kennedy, managed to win confirmation. Kennedy went on to author the court’s 1992 decision in Planned Parenthood v. Casey, upholding Roe v. Wade.

Democratic Presidents have nominated only two Supreme Court Justices in the last thirty-seven years: Ruth Bader Ginsburg and Stephen Breyer. Republican Senators who believed in the Constitution had good reasons to oppose both nominations. Ginsburg was formerly a card-carrying attorney for the ACLU . While a Supreme Court clerk, Breyer wrote the first draft of the decision that created the “right to privacy”. Regarding their attitude towards the Constitution. these judicial nominees were the opposite of “strict constructionists” - they were deconstructionists. Yet Republican Senators rushed to join Democrats in confirming their nominations by overwhelming margins: 97-3 in the case of Ginsburg, 87-9 in the case of Breyer.

Not surprisingly, Justices Ginsburg and Breyer went on to vote for a “right to abortion” and, together with four other Justices nominated by Republican Presidents, they constitute the current 6-3 majority that recognizes a “right to abortion” in the United States Constitution.

The Republican Party’s track record on nominating and confirming Supreme Court Justices who recognize a Constitutional right to abortion is as follows: nine in favor (Stewart, Brennan, Burger, Blackmun, Powell, Stevens, O’Connor, Kennedy, Souter) , three opposed (Rehnquist, Scalia and Thomas).

The Democratic Party’s track record for its nominees who recognize a Constitutional right to abortion is as follows: three in favor (Marshall, Ginsburg, Breyer), one opposed (White)

Historically, the Republican Party’s nominees to the Supreme Court favor the right to abortion by the same margin as the nominees of the Democratic Party: three to one in favor.

How Republicans Prop Up Judicial Dictatorship Today

Since confirming Clinton Supreme Court nominees Ginsburg and Breyer by overwhelming margins, Republicans have adhered to a policy of noninterference with the federal judiciary.

Article III Section 2 of the the Constitution authorizes Congress to rein in excesses of federal judicial power by making exceptions and regulations to the appellate jurisdiction of the Supreme Court. But even though Republicans have controlled both Houses of Congress almost continuously since 1994, they have refused to exercise that authority or responsibility.

That is, until 2004, when Tom DeLay persuaded House Republicans to pass a bill taking away federal judges’ jurisdiction over the pledge of allegiance.

The bill was spiked in the Republican-controlled Senate. Then, Republicans agreed with Democrats to investigate DeLay for ethics violations, and forced DeLay to apologize for criticizing the judicial dictatorship.

Since 2000, the Republican Party has controlled the Presidency and both Houses of Congress. But instead of stocking the federal bench with nominees who respect the Constitution, the Republicans agreed to years of stalemate with the Democrats.

Some Republicans insisted on an “up or down vote” on judicial nominees, and proposed using their majority power to curtail the minority’s filibuster and to force that vote.

But their efforts were sabotaged when Senator John McCain and six other Republican Senators threw in this winning hand instead of playing it. McCain’s fold will allow judicial nominees to be blocked by filibuster under “extraordinary circumstances”, indubitably understood to mean the nominee’s intention to uphold the Constitution as written.

When will Christians abandon their fantasies that Republican Party will restore Constitutional government to the United States?

Deposing Judicial Dictatorship

Once one accepts that the Republican Party and the Democratic Party are equally committed to judicial dictatorship, certain conclusions follow, to wit, not only do we have judicial dictatorship, but that dictatorship cannot be ended through ordinary political means.

America’s judicial dictatorship can be deposed only by resistance. Resistance is defined as the flat and unconditional refusal to yield. Resisting judicial dictatorship means refusing to comply with judicial edicts.

The idea of refusing to comply with judicial edicts is not new. Presidents like Andrew Jackson and Abraham Lincoln declined to enforce Supreme Court decisions they thought were wrongly decided.

In 1962, Professor Alexander Bickel of Yale Law School admitted that federal judges don’t necessarily have the final say about what the Constitution says:

“The Supreme Court’s law [...] could not in our system prevail if it was opposed by a determined and substantial minority [...] This is why the Supreme Court is a court of last resort presumptively only [...] It takes concerted effort at some risk, and hence not a little daring, to fight back, and then there is no guaranty of victory [...] But given passion, vigor and hard-headedness, it can be done as has been done”

      Alexander M. Bickel
      The Least Dangerous Branch

The most effective way for citizens to resist is to elect State and local government officials who will ignore Supreme Court edicts. The federal executive must then chose whether to use force against State and local governments, or to do nothing. This tactic involves “some risk, and hence not a little daring,” because it pushes the federal government to the brink of violence.

But while the federal government does not hesitate to use force, including excessive force, against individuals, its use of force against State and local governments is more infrequent. Like any bully, it hesitates when force is threatened in return. And State and local governments can marshall significant force of their own, e.g. National Guard, Militia and the Sheriff’s Posse.

The last such incidents took place in four Southern States in the late fifties and early sixties - a time when few Americans recognized the Supreme Court for the judicial dictatorship that it is.

Now, forty years later, the federal government’s armed forces are for the foreseeable future overextended in the Middle Eastern War. Fewer troops will be available for its use at home. Even National Guard troops have been called into federal service, and are largely committed to foreign operations.

There may never be a better time to call the federal government’s bluff that it is willing to enforce Supreme Court edicts against State and local governments.

The most likely candidates to call that bluff are the State of New Hampshire, where the Free State Project seeks liberty in our lifetime, or the State of South Carolina, where Christian Exodus wants to establish a Constitutional, Christian government.