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The Problem with the Courts

The problem of the courts is an interdisciplinary problem.

As just about everyone knows by now, the federal courts of the United States have assumed the role of the federal legislature as the makers of law.

Andrew C. McCarthy nicely summarizes the provenance, development, and meaning of this situation in the current issue of The New Criterion ("The law: servant or master?" February 2011). He explains, "The Law is now the omnipresent ruler by which our actions are judged legitimate or illegitimate. Those who claim the power to say what the law is are thus our overlords."

Well that's not exactly cheery, is it? Granted, thus far the courts have only exercised their law-making powers within a fairly selective scope of concerns - legitimizing abortion, defining marriage, telling the President what he can and can't do as commander-in-chief, legitimizing international law as a binding force on US citizens, and telling the nation you can believe whatever you want and live however you like.

Hmmm. That's not as "selective" and "limited" as we might have thought. And, since law creates precedent for more laws, where will these decisions lead?

The problem of the courts is an interdisciplinary problem. It's a problem of history because these days no one is allowed to appeal to history - say, the intentions of The Founders - in order to correct the actions of the court (ask Robert Bork). It's a problem of psychology because the courts seem to think that people are all basically good and decent. It's a moral problem because what's law today might change tomorrow, implying that all morals are merely relative. And it's a political problem, because there doesn't seem to be an easy way to get rid of law-making judges.

Mr. McCarthy explains that this is also a cultural problem. The noxious poison of our postmodern, pragmatic, and relativist age has invaded the veins of the federal judiciary, and the courts are getting high on their own self-importance. Mr. McCarthy writes, "As the final word on the law, judges are deemed to be endowed with the power to overturn the popular will."

This is not democracy, but oligarchy - the rule of the many by the few. "The federal courts...now perceive themselves as existing outside and above our government, as a forum where all the world is invited to make its case against America - and where America shouldn't expect to find a home-court advantage."

Whose fault is this? Let's blame Oliver Wendell Holmes and the other early-20th century Progressives! Let's blame the Warren Court! Let's blame liberals (yeah, liberals surely made this mess)!

How about let's blame ourselves? When the Christian community turned its back on the Law of God - as in, "I'm not under Law, I'm under grace!" - it cut out the very heart of law which gave life to this country's legal system, within a heritage of law reaching back through British common law to the canon law of the early middle ages. If Christians weren't going to stand up for the Law of God, why should anyone else? Thus we undermined our own hand-wringing objections to "progressive law" and the rule of the courts because we took away everything above the courts to which we might appeal to rein them in - like the Law of God and the tradition of Western law grounded therein.

So the problem of the courts is also, it seems, a spiritual problem. Our spiritual problem. This is no time for pastors to be pussy-footing around the Law of God, or for people to be quibbling and demurring over whether or not we should stone our recalcitrant children. This is a time for serious Christians to begin serious study of the Law of God, in order to learn what it teaches, how to interpret and apply it, and how to mine its holy and righteous and good (Rom. 7.12) counsel, so that we might shore up the disintegrating fabric of American justice and morality.

But will we do so? Will you?

Additional related texts: Romans 2.14, 15; 7.12; Matthew 5.17-19; 1 John 2.1-6; Psalm 19.7-11

A conversation starter: "You know, Jesus said that God's Law is the primary source for knowing how to love (Matt. 22.34-40). Do you think that could be so?"

T. M. Moore

T.M. Moore

T. M. Moore is principal of The Fellowship of Ailbe, a spiritual fellowship in the Celtic Christian tradition. He and his wife, Susie, make their home in the Champlain Valley of Vermont.
Books by T. M. Moore

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