Federal Courts and the Imaginary Constitution

August 19, 2007

It’s been a tough year for mainstream libertarians, thanks to our federal courts. From “gun rights” to immigration “regulation” to habeas corpus, to the War in Iraq, federal courts recently have issued rulings that conflict with both the Constitution and overwhelming public sentiment. Liberals and libertarians who once viewed the judiciary as the final bulwark against government tyranny must now accept that no branch of government even remotely performs its constitutional role.

The practice of judicial activism – legislating from the bench – is now standard for many federal judges. They dismiss the doctrine of strict construction as hopelessly outdated, instead treating the Constitution as fluid and malleable to create a desired outcome in any given case. For judges who see themselves as conservative activists, their vision of justice is more important than the letter of the laws they are sworn to interpret and uphold. With the federal judiciary focused more on promoting a conservative agenda than upholding the rule of law, Americans find themselves increasingly governed by men they did not elect and cannot remove from office.

Consider the New Orleans gun case decided by a federal court in 2005. The Court determined that the City of New Orleans and State of Louisiana had no right to establish its own standards for private gun ownership, because gun ownership is somehow protected under the 2nd amendment “right to keep and bear arms.” Ridiculous as gun bans may be, there clearly is no right to gun ownership found anywhere in the Constitution.  The Second Amendment, as we all know, pertains to “well-regulated militias,” and not individuals, and the Constitution’s was intended to apply only to the federal government.  The 2nd amendment simply protects state-government-operated militias from being disarmed by the federal government.

There are states’ rights – rights plainly affirmed in the Ninth and Tenth amendments. Under those amendments, the State of Louisiana has the right to decide for itself how to regulate criminal and safety matters like guns, using its own local standards. But rather than applying the real Constitution and declining jurisdiction over a properly state matter, the Court decided to apply the imaginary Constitution and impose its vision on the people of Louisiana.

Similarly, the Supreme Court in April of 2006 declared that public schools may not regulate the religious viewpoints of students in schools. The parents of a five year old, whose art project contained a painting of Jesus, sued after the school folded the picture in half so that the Jesus imagery was not viewable at an art fair – claiming that their child’s 1st Amendment rights had been violated. The judge agreed, ruling that the school had violated his rights. Never mind that the community might not want to see religious views in schools. Never mind that the school had lots of different religions – and non-religions – within its population. Never mind that the school was operated by a local school board, and not the federal government.  The real tragedy is that our founders simply wanted to prevent Congress from establishing a state religion, as England had. The First amendment says “Congress shall make no law” – a phrase that cannot possibly be interpreted to apply to a public school in Baldwinsville. But the phony activist “religious freedom” doctrine leads to perverse outcomes like the overruling of a local school district’s ability to preserve order by banning religious displays, and invents new “rights” like freedom of religion in school.

These are but two recent examples. There are many more, including a federal court ruling that stated that public school science classes must teach scientific theory, rather than the Biblical Genesis story of creationism.

The political right increasingly uses the federal judiciary to do in court what it cannot do at the ballot box: advance an activist, religious, monocultural political agenda of which most Americans disapprove. This is why federal legal precedents in so many areas do not reflect the consensus of either federal or state legislators. Whether it’s gun “rights,” abortion, taxes, creationism, environmental regulations, immigration, or religion, federal jurists are way out of touch with the American people. As a society we should reconsider the wisdom of lifetime tenure for federal judges, while Congress and the President should remember that the Supreme Court is supreme only over other federal courts – not over the other branches of government. It’s time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not.


  1. Ummm, this is article is plagarized from one written by Rep. Ron Paul back on August 12, 2003 (http://www.lewrockwell.com/paul/paul120.html — but of course you KNEW that, becuase that is where you stole it from).

    At a minimum, you deserve an “F” in your English composition class. More likely you should be suspended or expelled from school.

    The least you could do is give credit for the original article. Sadly, your lack of doing so doesn’t show much for the integrity of this site. (And I kindof liked Dennis Kucinich before… you’ve soured me now!)

    W Lee Miller
    Unashamed Ron Paul supporter (who also donated to Howard Dean in the past, so there!)

  2. Bro –

    Libertarianism and Socialism are mutually exclusive concepts.

    Libertarianism has at its root the concept of private property – that is the core of the philosophy.

    Socialism has as its root the concept of social ownership of property.

    These two cannot go hand-in-hand.

    This is in regard to your blogroll and the picture at the top of your page. It shows a lack of insight on your part to try to mesh the two completely exclusive concepts.

    True liberalism in the classical sense means social, political AND economic freedom. The freedom to choose ones own path and how to utilize their own abilities, and accumulated material, capital and personal possessions.

    Socialism, at its heart, is an attack on the ability of individuals to live their lives as they choose. Socialism, essentially, is the slavery of the individual to the mass.

    And, meanwhile, plagiarizing from the honorable Dr. Paul is ridiculous on your part. Come now.

    Kemp Moyer
    100% unashamed Ron Paul supporter (who liked/likes some things some of the Dean, Kucinich guys have said, but don’t like their understanding of economics or personal freedom).

  3. This person is a fraud, not a libertarian and is plagiarizing Paul stuff.
    DK is a liberal, and pure socialist….

  4. Wow, how oblivious are you guys? Yes, this is plagarism – but have you read the original article by the “honorable Dr. Paul”? You know, the one where he argues that the right to privacy is just the pipe dream of some nutty judicial activists?

    Dr. Paul is wrong on just about everything, the right to privacy included. This article isn’t merely an argument for the author’s brand of libertarianism – it’s also meant to show how the same people who claim that these court decisions are ‘activist’ suddenly become A-OK with them when the decisions agree with Dr. Paul’s views.

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