How Stands the Republic?

by Patrick J. Buchanan – July 2, 1997

As another anniversary of the Declaration of Independence is upon us, it is fair to ask: What would the men of ’76 think of us?

While they would surely be awed by America’s size, wealth and power, I suspect they would be unimpressed with our leaders and alarmed at our course.

The independence they won at immense sacrifice was, after all, an economic as well as a political independence. Yet our leaders are deliberately increasing our dependency on a global economy. Total trade — less than a tenth of gross national product for generations — is now 23 percent and projected to reach 36 percent by 2010. America will then cease to be a truly independent nation.

Our forefathers were passionate about keeping America out of Europe’s wars and severing political ties to the Old World. They looked westward over the mountains, not eastward to the sea. But our leaders, by expanding NATO, are laboring today to ensnare this country in every European war of the new century.

The first patriots established a republic of majority rule where elected representatives made the law. Last week, we sat patiently as nine unelected judges whom most Americans could not identify — appointed for life and answerable to no one — told us how we may govern ourselves. The patriots of ’76 fought to end the rule of kings; we meekly submit to a rule of judges.

The Supreme Court was to be the third and weakest branch of government. It has become the first and strongest because of the timidity of Congress. Recoiling from real power, our Congress is secretly delighted at being relieved of responsibility for resolving such blazing issues as busing, abortion, affirmative action, term limits, gun laws, doctor-assisted suicide, school prayer, English only and retention of all-male military schools.

Even when the court hands down an opinion that enrages the nation — such as outlawing school prayer or discovering First Amendment protection for burning the American flag — Congress will huff and puff and end up doing nothing.

If Congress wished to become again the first branch of government, it would challenge the court’s supremacy. For a courageous Congress, the options are many.

Under Article III, Congress can restrict the jurisdiction of the high court. Congress could impose term limits on U.S. judges and a reconfirmation requirement after eight years on the bench — an easy way to rid the nation of judicial lemons. Congress could give voters authority to recall federal judges. Congress could revive James Madison’s amendment giving three-fourths of the states authority to amend the Constitution without congressional approval. In an eyelash, federalism would be restored.

But Congress will do none of the above. Better to let the president decide when to go to war, let the court decide social, moral and cultural issues, and leave the members of Congress to fulminate harmlessly at election time.

Great presidents never accepted judicial supremacy. Thomas Jefferson refused to enforce the Alien and Sedition Laws, released all of those arrested and declared the laws a “nullity.” With Jefferson in power, even Chief Justice John Marshall backed away from his doctrine of judicial supremacy. Fearful he might be impeached, like Justice Samuel Chase, Marshall suggested Congress overrule the court: “A reversal of those legal opinions deemed unsound by the legislature would certainly better comport”.

But there is another way liberty has been advanced: popular defiance. Boston patriots dumped the king’s tea into the harbor. The Underground Railroad ran fugitive slaves to Canada. The cause of women’s suffrage used illegal protests. The movement for civil rights used civil disobedience to challenge segregation. All have been vindicated by history because they won.

It is time for America’s majority to defy a court that rules all too often in favor of a dissenting and sometimes tiny minority. In Alabama, a judge is refusing to take down the Ten Commandments from the wall of his courtroom. The governor has said he will support the judge’s stand with state police and National Guard if the Supreme Court orders the commandments down and Clinton comes with troops. Could be our Concord Bridge. Be there.