Last month I received an email asking me if I wanted to review a book by Phyllis Schlafly. Asking me if I wanted a free book is like asking Homer Simpson if he wants a donut. But asking me about a book by Phyllis Schlafly is a virtual slam dunk. I have long admired her and just last weekend she turned eighty. Her work to defeat the Equal Rights Amendment (ERA) is something we can all be greatly thankful for. She had warned that the ERA would lead to constitutional protection of homosexual marriage and though she was mocked at the time for making the slippery slope argument, she has been born out. In the Goodridge v. Dep’t of Public Health they relied on the Massachusetts state’s ERA to legalize same-sex marriage. In fact law professor Eugene Volokh had posted before that Phyllis Schlafly said it would be like this. So we all owe her a debt of gratitude or else the present federal circumstance could have been much worse.
Her new book "The Supremacists" is extremely worthwhile reading. She provides the history of judicial activism and divides it up into chapters covering specific topics such as Acknowledgment of God, Abortion, and U.S. Sovereignty. Her writing is easily readable and does not require you to be a legal wonk to follow along. The book is not dated in any way since it also includes very recent Supreme Court decisions along with an excellend appendix.
One of the parts I found interesting was the following.
Alexander Hamilton wrote in Federalist 91 that he expected Congress to use its discretion to make appropriate"exceptions and regulations" to keep the judiciary" the least dangerous" of the three branches of government.
Obviously the actions of the court has become disordered and that the court would now reign supreme. She traces the history of judicial activism and points to its genesis as the infamous Dred Scott decision. In this case not only did they make a horrible and pro-slavery decision in regards to the citizenship of Dred Scott, but they then also exceeded their jurisdiction by striking down the and calling unconstitutional a federal law as part of the Missouri Compromise which forbid slavery in the Western territories. This has become the pattern in judicial activism where they give advisory opinions on issues that are not even before them in a case. Of course the Dred Scott case was a mirror for Roe v. Wade and once again the court decides who is a person and who is property. Learning from past mistakes is not a strong suit of the court.
Besides just detailing judicial horror stories she goes on to show how the problem can be solved. The solution she proposes is interesting because it relies on what was to me surprising information on the legislatures oversight on federal courts. You will just have to read the book yourself to find out what this is.
So with the Dred Scott case we see there has been judicial activism as long as their has been Republican presidents. She also points out how some of the greatest activists have been appointed by Republican presidents and mentions that an appointee of which President Eisenhower greatly regretted having put on the bench. In recent years Democrats have been infallible in appointing liberal activists to the court, but Republican appointees have definitely been a mixed bag. If President Bush does get an opportunity to appoint one or more Supreme Court justices I hope he learns from the mistake of his father and other presidents before him. Unfortunately their spines seem to turn to jelly when the words litmus test is uttered.
I highly recommend this book and if you are interested in purchasing it you could go to Domenico Bettinelli’s site and click on the link there to get it at half price.
Indeed, there are no checks and balances on the judiciary.
To put this in a grossly simple perspective, the feddle gubment was supposed to work like rock-scissors-paper. But it is as if rock decided that paper would no longer cover it, and paper decided to let rock get away with it.
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