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Phyllis Schlafly’s unfinished business: Reclaim courts’ power

Conservative Review

As someone who never left a stone unturned in fighting for the Constitution, one of Phyllis Schlafly’s lesser known legacies was her fight to reform the court system.  While most others in the conservative movement have cowered under judicial tyranny, opting to focus solely on the failed pursuit of “appointing better judges,” Schlafly was a strong proponent of having Congress use Article III Section 2 to strip the courts of their illegal power to crush states on social and political issues. As I warn in my book, Stolen Sovereignty, it’s time for conservatives to pick up that mantle and use this constitutional remedy to restore the balance of power between the federal judiciary, Congress, and the states.

In 2004, back when even moderate Republicans still stood for something, the House Judiciary Committee held a hearing on Congress’ power to limit the jurisdiction of the federal judiciary over social issues. Their main concern at the time was the growing number of lawsuits against the Defense of Marriage Act and the prospect that unelected courts might someday force states to redefine the building block of civilization. While conservatives at the time prophetically warned about the outcome of redefining marriage, few could have foreseen the severity of the religious liberty problems that have arisen as a result of the judiciary’s redefining of fundamental rights.

In her written testimony before the hearing, Mrs. Schlafly wrote the definitive history of congressional power to curb the jurisdiction of the courts. In her oral testimony, she spoke with moral clarity about the urgency for Congress to actually back up their tired rhetoric about the courts, saying:

Congress must back up this rhetoric with action! The American people expect Congress to use every constitutional weapon at its disposal to protect marriage from attack. Congress cannot stand by and let one activist judge cause havoc in our system of marriage law.

Here is a snippet of her written testimony:

Article III, Section 2 states: ''The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.'' This section means that Congress can make ''exceptions'' to the types of cases that the Supreme Court can decide. This is the most important way that Congress can and should bring an end to the reign of judges legislating from the bench.

The American people expect Congress to use its constitutional power so clearly available, and the voters are currently alienated because of Congress's failure to put down the attacks on marriage. We believe it is Congress's constitutional duty to protect the American people from judicial supremacists who might commit the outrage of overruling the federal and all state laws about marriage. Do we have self-government by our elected representatives, or don't we?

The argument will be made that we should accept any activist judge's ruling as ''the law of the land'' and that it is impertinent for Congress to preempt the courts. However, House Judiciary Committee Chairman Sensenbrenner made it clear in a speech to the U.S. Judicial Conference on March 16 of this year that he stands up for Congress's ''constitutionally authorized'' and ''appropriate'' powers over the judiciary. Mr. Sensenbrenner was not referring to the subject of this hearing, but it seems to me that the principle is the same. Congress must not shrink from subjecting activist judges to criticism or from Congress's use of its ''constitutionally authorized'' powers.

Schlafly concluded: “The argument will be made that such legislation means we don't trust the federal courts or the Supreme Court, and that's exactly right — we don't trust the courts to respect the wishes of Congress or of the American people…”

She further punctuated this point and sense of urgency in her 2006 book, Supremacists: The Tyranny of Judges and How to Stop it.

Here we are, a decade later, with the courts not only redefining marriage for all 50 states, but criminalizing religion and codifying the sexual identity movement as a national religion with the power to coerce private businesses to violate their conscience and property rights. We have courts redefining our most basic fundamental rights, mandating funding for Planned Parenthoodredefining sexualitymandating voting irregularities and early votingremaking election mapsinvalidating religious liberty bills, etc. Most egregiously, courts have moved onto what I call “the final frontier in judicial tyranny” — granting citizen rights to illegal aliens and stealing the sovereignty of America. Shockingly, even conservative Republicans are resigned to the courts being “the law of the land” and offer the American people nothing more than the same otiose promises of appointing better judges.

Meanwhile, as the Daily Signal points out, Democrats already control 70 percent of the federal appellate courts, and as we’ve chronicled over the past few months, at least half of the GOP appointees accept most of the post-constitutional premise and precedent of the Left. There is likely only one reliable circuit left. Even the Fifth Circuit wouldn’t uphold Texas’s common sense voter ID law. Unless Congress reasserts control over the Fourteenth Amendment, the bastardization of that amendment alone will destroy our Republic, irrespective of who wins this election. 

As recently as this February, Schlafly warned, “by now it should be painfully obvious that picking good judges is not sufficient to stop liberal activism by the courts.”  She observed that “Congress can deprive the federal courts of power over immigration, abortion and marriage, and can completely defund enforcement of bad federal court decisions that are already on the books.” 

[I echoed those sentiments in my long piece last month detailing 12 reasons why the courts are irremediably broken.]

Like the George Patton of conservative politics, Schlafly never resigned herself to acceptance of illegal, illogical, and immoral usurpations of our Constitution. She confronted these battles head on. And when it comes to confronting judicial tyranny, we should all follow her lead and finally declare war back on the federal judiciary.

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