In chapter 5 of Politics – According to the Bible, Wayne Grudem explains the US system of government, its “separation of powers”, and the proper role of the judiciary. He goes on to argue that while the system has “worked quite well” for most of the history of the United States, there is a problem that has become increasingly evident and damaging over the last 50 years or so, namely, the judiciary moving beyond its legitimate role of interpreting and applying the law into effectively creating new laws (and without any public accountability).
[T]here was a weakness in the system that the justices on the Supreme Court discovered over time. . . . If a case came to the Supreme Court and the Constitution did not say something that the Supreme Court justices wanted it to say, or thought it should say, they could claim to “discover” new principles in the Constitution, and no one would have power to overrule them. Whenever they thought it was important, they could simply create a new law and call it an “interpretation” of some part of the Constitution, and suddenly it would become the highest law in the land! In this way the Supreme Court justices discovered that they could become the most powerful rulers in the country. (p. 132)
After citing Roe v. Wade as a prime example, Grudem continues:
As the Supreme Court offered more and more decisions of this nature — decisions not grounded in any law that had been passed by any Congress or any state legislature, and that were not part of what the Constitution originally meant — it became, in actual functioning, the highest governing authority in the nation. The justices discovered that they had the freedom to make up new constitutional doctrines whenever they could get a majority of five persons to do so, and they could always claim to “discover” the new doctrine in some vague principle of the Constitution or other. (p. 134)
The Supreme Court . . . not only interprets the law and judges according to the laws, but also makes new laws in the sense of new provisions it claims to find in the Constitution, based on what it thinks is good for the nation. As former Chief Justice Charles Evans Hughes said, “We are under a Constitution, but the Constitution is what the judge says it is.” (p. 135)
Grudem proceeds to discuss several other prominent examples of judicial activism before delivering his conclusions about the significance of this political issue:
I believe that the battle for the control of the judicial system is now the single most important issue for the future of the United States. On the one side of this issue are liberal judges who insist that they will continue to make and uphold new laws as they think best, calling them “interpretations” of the Constitution, and also liberal politicians, who are determined to support the actions of these activist judges. . . . On the other side of this issue are those on the more conservative end of the political spectrum, including many judges who have decided that their task is only to interpret and apply the Constitution and the laws of the nation and the states according to the original intent of those documents at the time they were written. (p. 150)
As a non-US citizen and a relative newcomer to American politics, I’m hardly qualified to evaluate the details of Grudem’s argument, although I believe he’s quite right about the illegitimacy of judicial activism and about the rotten fruit it’s bearing in the United States. My purpose in this post is not so much to discuss Grudem’s analysis as to share a simple thought that occurred to me shortly after I read his chapter:
What has happened in the US system of government almost exactly parallels what happened in the government of the Christian church over the course of many centuries, a development that finds its fullest expression in the Roman Catholic Church.