Is the Judiciary Responsible for the Erosion of Liberty in America?

Over the last couple of days, I have heard increasing insight into the role of the judiciary in the deterioration of American liberties. Mark Levin, hearkening back to his first book, Men In Black: How the Supreme Court is Destroying America, lambasted The Court last week for essentially superseding its authority, time and again. If you haven’t read Men In Black, consider it the classical introduction to judicial corruption on the market. You’ll want to check it out.

This morning, I read a piece by Zach Werrell, former campaign manager for Dave Brat and Vince Haley, entitled Judicial Power Threatens American Federalism and Republican Liberty, over at Bearing Drift. In it, he rings the bell and issues the final decision on the age old debate: Federalists or Anti-Federalists  – Who was right?

His victor? The anti-federalists.

One could argue their enumerated fears over the Presidency have been largely errant… the true danger of the Presidency lies in willful defiance by those elected to the office of the bounds of its power (and for some, the existence of a perpetual standing army). So on that front – fears on the Presidency – the Anti-Federalists were largely incorrect. They were fearful of the right office, but for the wrong reasons.

Where the Anti-Federalists, specifically Brutus, proved to be spot on were on the dangers to the sovereignty and power of State governments from the Supreme Court as constructed in the Constitution.

Quoting the pseudonym, Brutus, the primary retort to the Federalist Papers, Werrell demonstrates the practically psychic prescience of the author (whoever he was).

Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accomodate themselves to the temper of the people.

And, of course, this is in fact what we’ve seen over these last hundred years.

But I wonder if the issue isn’t somewhat murkier and more disturbing. I agree with Zach, that, yes, the Anti-Federalists were right, though usually for the wrong reasons. Yet, why such a deterioration now?  Why does Progressivism rise in tides over generations, only to be temporarily rebuffed, but always ready and able to rise again, and always to rise upon the foundations built before?

And one answer to this question is, yes, The Supreme Court; as future progressive courts will always use the precedent of previous progressive courts to support their current progressive rulings. This is the nature of power and corruption, but what bothers me is not the idea that power corrupts, or that progressives seek the unraveling of the United States Constitution. I take these for granted. Why has the Supreme Court been successful? Why has our Congress, perpetually unpopular and despised, never backed down from their own private political agendas – agendas unhinged from the foundation of the American populace and their constitutional sovereignty as citizens?

But the other answer is, “us”.

Is it really that the Supreme Court, and the Congress, and the Presidents, have stripped our liberties from us? Or is it We the People who have demanded, deliberately or stupidly, our government take these liberties from us, as though they were but a burden we no longer sought to bear?

I believe that we have divorced the moral and physical responsibilities necessary for the sustenance of liberty from the concept of liberty itself. There can be no liberty without self-reliance, personal responsibility, and a civic duty and respect toward ones’ fellow Americans. The reality is, that self-reliance, personal responsibility, and civic duty have never occurred naturally in the majority of men, but rather occur only in the best men born into this world.

A collection of such virtuous men may be enough to build a nation, but their memory was never going to be enough to sustain it. No conceivable ordering of words nor structuring of meanings, penned upon parchment three hundred years ago could have prevented Man from being Man, and the ones responsible for preserving the virtue, philosophy, and culture of those great patriots that freed this continent from tyranny was each man and woman living, from then until now, and we have failed. We have failed catastrophically.

What can we say to our government in our defense?

“You have no right to tread upon my liberty!”

The government retorts, “it was not we who demanded an expensive government necessitating centralized control over your employers and institutions, but you who demanded we provide you with more and more services; and it was you who demanded we step further and further into your lives to decide every irrelevant matter of justice imaginable. It was you who brought the lawsuits which ended in legislations and rulings and you who celebrated US every time WE came to save you from whatever peril you encountered in the course of your free exercise of liberty”.

“WE did not stop you from knowing how to survive in nature and thus, become dependent upon complex economies. That was your choice! And when your economies collapse, do you not look to US as responsible for doing something about it? Every time you’ve asked US to get involved in your lives, you’ve forced US to allow ourselves more power, powers attractive to the rich and powerful above you. And if WE can regulate your economies, was it not obvious to you at the time that those with the most on the line, would knock the loudest at OUR doors?”

“You kept demanding US to do something – and whatever did you think would happen by transferring your power as individuals to US as government? That WE, from time to time did things you approved of, makes you think for some reason that WE would not use those same powers to do things you despised? Hypocrites! Do not point the finger at US! If WE backed down and backed out of your lives and returned you to liberty you would panic! OUR power has always depended upon your consent and, for good or ill, your self-subjugation has made US what WE are today, and you can yell and scream all you’d like, WE don’t believe you really want US to let you free. WE don’t believe you even remember Liberty. Take your complaints elsewhere! WE have work to do!”.

And what is our defense? We’ve done this to ourselves. It’s not the federalists or the anti-federalists. It’s us.

Liberty demands self-reliance, personal responsibility, and civic duty. When we surrendered these, we surrendered everything. If we want to take our liberty back, we better embrace these and that which they depend upon, if we’re to have any chance in turning the tables on this government and our rulers.