From ‘we the people’ to ‘we the judges’?

The Constitution begins “We the people,” not “we the judges.” Lately, there has been a tussle between activist judges and President Trump. Some critics argue that some of these judges are acting as if they were the ones elected to the Oval Office.

FoxNews reports on the issue of “whether a lower court can properly address the Trump administration’s efforts to deport Venezuelan nationals via a 1798 wartime law.”

That 1798 law is the Alien Enemies Act, which allows the president certain powers to detain and deport those from enemy nations. The Trump administration has invoked the Act in its deportation of members of Tren de Aragua, a Venezuelan terrorist group.

The key judge in that “lower court” is James Boasberg, a Biden appointee, who is the chief judge for the District of Columbia.

Scott Powell of the Discovery Institute writes:

“Judge Boasberg expressed skepticism about the Trump administration’s policy of using a powerful and rarely invoked wartime statute, the Alien Enemies Act, to summarily deport immigrants from the country. The judge said, ‘The policy ramifications of this are incredibly troublesome and problematic and concerning.'”

My colleague John Rabe observes, “Whether this is a proper use of the 1798 Act really is a question for the courts, but it’s not supposed to be that any individual judge out of hundreds all over the country can act as a veto of anything the president wants to do.”

And he adds, “Courts do need to decide whether a law is being applied appropriately or not. That’s part of our checks and balances. What it’s not supposed to be is one rogue judge from one liberal court somewhere.”

Writing for The Federalist, Justin Evan Smith decries what is happening this way: “Rogue Judges Are Turning Judicial Review Into Judicial Rule.”

The specifics of this case and ones like it will soon be hashed out in the courts. Meanwhile, this case points to the problem of judicial activism, where judges essentially legislate (not adjudicate) from the bench.

The Declaration of Independence lists many abuses of the British crown against the God-given liberties of the colonists. One of them relates to judges. Says our nation’s birth certificate: “[The king] has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”

In 1819, Jefferson spoke out against judicial activism, saying: “The Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

Before President Trump in his first term nominated and fought for three non-activist justices for the Supreme Court, we went through several decades in America where we were virtually ruled by the Court. Every year we had to wait until the end of June or thereabouts to know the latest that our robed masters would hand down to us, as they come down from Mount Olympus, if you will, with their rulings.

The founders never intended it to be this way. In Federalist 81, founding father Alexander Hamilton made it clear that the courts are to be the weakest of the three branches of government.

Those who hold to the notion that the Constitution is a “living document” are able to read into it whatever they want it to say. Again, to quote Jefferson, “The germ of dissolution of our federal government is in the constitution of the federal judiciary.”

Judicial activism has been blamed by many critics for helping to instigate the Civil War. The Dred Scott Supreme Court decision of 1857 basically held that a freed black man had no rights under the Constitution. That’s not what the Constitution said, but that was what they ruled in court. More than 700,000 men were killed in the Civil War, in part through this bad ruling.

In 1861, when President Lincoln was sworn in, in one of the great ironies of history, it was Roger Taney who administered the oath. Yet Taney, the chief justice of the Supreme Court, was the very man who wrote the Dred Scott decision, which held effectively that once a slave always a slave.

When Lincoln delivered his First Inaugural Address, he eschewed the idea that we the people should be ruled by we the judges. I’m sure he had the Dred Scott decision in mind when he said this: “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers.”

With these activist judges, like Boasberg, trying to hamstring President Trump’s attempt to keep America safe from murderous alien gangs, have we the people “ceased to be” our “own rulers”?