Judicial Crisis: Rushdoony Warned Us

America today is in the throes of a judicial crisis. State and federal judges have run amok, seeking to reinvent every aspect of American life. They nullify laws and referenda, legislate from the bench, and invent new “rights” whenever the mood strikes them.

Rev. R. J. Rushdoony, Chalcedon’s founder, saw it coming. Warning us, he wrote about it thirty, and even forty, years ago. Rushdoony accurately assessed the reasons for this crisis, and recommended ways to avert it. At the time, there were few (even among Christians) who heard him, and even fewer who took him seriously. Had America forty years ago followed his example and rededicated the nation to a Bible-centered worldview — faith for all of life, including the management of public affairs — our country today would have a very different look.

Rush has passed on, but he left the Chalcedon Foundation to carry on his work. Coping with the judicial crisis is part of it.

It’s a Mess, Alright
Liberal judges now base their rulings on foreign law — Canadian law, European Court of Human Rights decisions, anything that serves their purpose — instead of on the U. S. Constitution. The two most recent damaging examples are Lawrence v. Texas, in which the U. S. Supreme Court last year struck down anti-sodomy laws in 15 states, and the Massachusetts Supreme Judicial Court’s dictate to the state legislature, this year, to legalize “gay marriage.”

Judges defy 70% or more of the American people (according to a 2003 Gallup Poll) by ruling against public displays of the Ten Commandments.

Judge Roy Moore had the support of 77% of the people in his state (see The Wallbuilders Report, Winter 2004) when he defended his right to place a Ten Commandments monument in the rotunda of the Alabama Supreme Court Building, where he was chief justice. When he chose to obey the state constitution rather than the order of a federal judge, a panel of judges removed him from office and locked the monument in a closet.

Liberal judges refuse to enforce laws they don’t like.

While the mayor of San Francisco indulged in an orgy of law-breaking, performing more than 3,000 homosexual “marriages,” the city courts ducked the issue repeatedly until the governor had to order the attorney general to get the state Supreme Court to stop it. The mayor has yet to be arrested and charged for even one of these violations of the law.

Meanwhile, liberals in the U. S. Senate have successfully waged an unconstitutional filibuster to block confirmation votes on conservatives nominated to federal judgeships. Judges whose opinions on abortion, “gay rights,” etc., match those of the majority of the American people have been stymied. As New York Senator Chuck Schumer says, the majority of America is “outside the mainstream of American thought.”

How Did We Get Here?
Today’s outlaw judges base their actions on a claim that the Constitution is a “living document” whose meaning changes as society changes.

In The Politics of Guilt and Pity, Rushdoony charted the destruction of Constitutional thought. He noted that some 100 years ago, Supreme Court Justice Oliver Wendell Holmes practiced “a rather mystical jurisprudence” based on public opinion as a “law behind the law.”¹ Nowadays, of course, “public opinion” has been bumped by the opinion of a small liberal elite.

In 1950 (as charted by Rushdoony), Justice Learned Hand accused the Supreme Court of trying to be “Platonic Guardians,” reducing the democratic process to an exercise in futility.² “If they were in charge,” Hand said, “I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.”

He should see it now.

In 1958 the National Conference of Judges accused the Supreme Court of assuming legislative powers. The chief justices of 36 states endorsed this resolution, with only 8 opposed.³

In 1962, the Supreme Court banned school prayer, ushering in an age of judicial abuse of power, and the tempo only continues to accelerate. By inventing “rights” to abortion, sodomy, and no-fault divorce, and explosively expanding the rights of criminals, a few judges have done more to change society than all our state and federal legislators put together.

Where Is It Headed?
Rushdoony captured the judicial spirit of our time in a quote by Mussolini: “The state as universal ethical will is the creator of the law.”

So our law doesn’t come from God, but is merely the creation of the state. This is the state trying to play God, and that with a vengeance. If the meaning of the Constitution changes from day to day, from judge to judge — as liberal Supreme Court justices Ginsburg, O’Connor, Breyer, Kennedy, Stephens, and Souter say it does — then we have no law at all.

“When man reduces the law to his own moralistic dimension, he destroys the law,” Rushdoony wrote.⁴ Or, as conservative commentator Walter Williams put it, “Would you want to play poker with someone who changes the rules with each new deal?”

Since the birth of the Modern Age, Western civilization’s intellectuals have been trying to undermine belief in God’s immutable law. The few thinkers like Rushdoony, who stood up for God’s law, have been mocked, ignored, demonized, and pushed aside. The Western world has come to believe that law has nothing to do with God.

Having succeeded in demolishing widespread belief in God as the source of all law, liberals have now set their sights on undermining man’s law — namely, the U. S. Constitution. The law can’t remain unchanged, they say, when all of human history is nothing but change.

The result is chaos. We have societal chaos — too many children born out of wedlock, the rise of AIDS, and an endless parade on the evening news of outlandish crimes, any one of which would have stopped the presses a generation ago.

And we have legal chaos. Our judges have become a law unto themselves. We won’t be able to stop them now without sweat and tears. We have to confirm good judges and impeach the bad ones, and elect hard-nosed Christian legislators who’ll have the guts to do it.

Put people in who really believe in “one nation under God,” and who’ll back it up with their actions.

In the future, when someone like Rushdoony speaks, America should listen.

Our job at Chalcedon is to make that happen.

Notes

1. R. J. Rushdoony, The Politics of Guilt and Pity (n.p.: The Craig Press, 1970), 127.

2. Ibid., 124.

3. Ibid., 128.

4. Ibid., 103.