The Cultivation of Soft Tyranny: The Supreme Court vs. The Constitution

Joseph Story, who served on the Supreme Court from 1811-1845, once remarked that “the American republic, above all others, demands from every citizen unceasing vigilance and exertion; since we have deliberately dispensed with every guard against danger or ruin; except the intelligence and virtue of the people themselves.” The mostly untouched history books in our libraries are teeming with cautionary writings like this. Our diminished awareness provides the federal government, Republicans and Democrats alike, exemption from any real consequence or penalty. This is what Alexis de Tocqueville called soft tyranny: “It covers the surface of society with a network of small, complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence: it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”

By the numbers – In 2011 Newsweek gave a thousand Americans a standard citizenship test and close to forty percent of them failed. A year later a poll run by found that nearly two thirds of Americans could not name a single Supreme Court Justice and yet, of those same people, half of them had a negative view of the Court despite knowing little to nothing about it. The same survey revealed that less than one percent of Americans were able to correctly identify each Supreme Court Justice. Another 2011 Newsweek poll confirmed that ten percent of those surveyed demonstrated acceptable knowledge of our three branches of government, and that seventy couldn’t identify what the “supreme law of the land” is. As of this writing, civics and history are the two subjects that students have the least proficiency in.

Over the past eight years, as the country has been pulled further and further to the left, there are fewer and fewer officials who hold to the document they’ve all sworn an oath to protect and defend – the United States Constitution. Those who do are referred to as “textualists” or “originalists” for regarding the constitution for what it is – a binding legal document – instead of what they would like it be. Our constitution is to be upheld, not reinterpreted. As the late Supreme Court Justice Antonin Scalia observed, “the constitution is not an organism; it’s legal text, for Pete’s sake.” On the Supreme Court, Scalia was in the minority, however.  Justice Anthony Kennedy has commented numerous times that he is “not a constitution worshipper” and that he believes it to be a “living, breathing, and flawed document full of “thinly veiled language.”

The impact of this view on our governing document can be seen in the recent Supreme Court decisions. By now we’ve all seen headlines about the Court’s 5-3 vote that “struck down Texas abortion restrictions. This was a law that would require abortion clinics to meet surgical standards – in the wake of the findings at Kermit Gosnell’s “clinic” in Philadelphia. The law called for those performing abortions to have formal relationships with doctors at nearby hospitals so that in the event of a medical emergency the patient could be easily transferred. Pro-choice advocates and the far left immediately decried the proposed measures as “clinic shutdown laws.”

Writing for the majority opinion Justice Stephen Breyer remarked that the requirements would provide “few, if any, benefits to women” and would constitute an “undue burden” on women seeking an abortion. Again, the majority opinion of the Supreme Court of the United States is that surgical standards and relationships with nearby doctors and hospitals “poses a substantial obstacle to women seeking an abortion.” In his written dissenting opinion, Justice Clarence Thomas said that “the Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution,” Thomas wrote. “But our Constitution renounces the notion that some constitutional rights are more equal than others. … A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

Hillary Clinton wasted no time in praising this ruling by saying “SCOTUS’s decision is a victory for women in Texas and across America. Safe abortion should be a right – not just on paper, but in reality.” Setting aside that safe abortion was the purpose of the law, Clinton’s statement that safe abortion “should be a right” really exposes the danger of leaving the meaning of our laws up for interpretation. In a recent interview with George Stephanopolous – former White House Communications Director under Bill Clinton turned journalist – Hillary Clinton discussed the right to own a firearm as a hypothetical. “If it is a constitutional right then it, like every constitutional right, is subject to reasonable regulations.” To be clear, since she is radically pro-choice – to the point of arguing for partial birth abortion –  measures that would introduce safety regulations in abortion clinics are deemed “shutdown laws” but since Hillary Clinton doesn’t like guns the right to bear arms under the 2nd Amendment, “if it is a constitutional right,” should be subject to “reasonable regulation.”

And who decides what constitutes “reasonable regulation?”

The Founders, as well as conservatives today, believe in and understand that flawed nature of man. Indeed man is imperfect and this is precisely why the Framers built in a system of checks and balances. This is why we have separation of powers between the branches of government. This is why we have Article 5. Both judicial and government power is supposed to be limited. James Madison himself said that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
If we are to believe that the constitution is so flawed, so nebulous as to be reinterpreted to fit the narratives of the day, then why would we put such importance on the decisions made by our Supreme Court? We should not be so profoundly worried about what kind of judges a presidential candidate, if elected, would put on the court. The question reveals tremendous fault – that there are “kinds” of judges. Everything should not depend on the decisions of 8 or 9 unelected, flawed humans in robes, half of whom believe that our rules of governance are malleable and can be reinterpreted to accommodate the demands of any particular political ideology. This is exactly what our founders were opposed to. Their deep fear of centralized power is the reason the states have sovereignty – why libertarians are able to move to Colorado for the weed and practicing Catholics can stay in Rhode Island where the sale of alcohol is banned on the Sabbath. Again, the words of the late “originalist” Antonin Scalia are profoundly relevant: “A system of democratically adopted laws cannot endure – it makes no sense – without the belief that words have discernible meanings and without the commitment of legal arbiters to abide by those meanings.”

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