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Courts Do Not Make Law

Who are you going to believe…
me, or your own eyes? — Groucho Marx

Michael Peroutka

[COMMENT:  People say that Christians should not get into politics.  Rather, Christians should not get into dishonest politics.  "Jesus is Lord" is a political statement.  Jesus is claiming authority over all kings and presidents, all emperors and governors, all mayors and legislators.  Politics is just another place for Christians to give their witness -- most especially about who is Lord.  That is (1) why the early Christians were persecuted, and (2) why they won the empire for Christ. 

Politics is NOT the place for Christians to force their view on anyone.  We must win our right to pass laws just as any other person with a viewpoint.  As in, "Come, let us reason together...."  Isaiah 1:18. 

Christians will be able to do that gracefully and with intellectual and political credibility when we develop the Biblical view of politics.  It is a winner.  It is the only secure foundation for a free people because the political program of freedom must be built on the spiritual life of freedom.  There is none but the Biblical.    

How does one tell what is the "American" way?  1. by the founding documents.   2. by the will of "we, the people".   3. by discerning our reason for existence (the basis of all obligation, both public and private), which can, as a matter of logical fact, come only from God.   Numbers 1 and 3 are clear.  God's way is the American way.  Number 2 will happen with clarity only when Christians develop their own clarity about God and politics.  E. Fox]

Dear Friends of the Constitutional Republic

Is Roe v. Wade the “law of the land”?

The current Chief Justice of the United States Supreme Court, in his confirmation hearings for the office of federal district judge, in 2003, said it was. He said that Roe was “settled law”. In fact, he said it was “a little more than settled” law ? whatever that means?!

Like the Senators that questioned him and that later questioned Samuel Alito, Chief Justice Roberts demonstrated over and over that he is NOT qualified to hold the office of Chief Justice, or federal judge or, for that matter, any federal or state office because he doesn’t know the true Source and Nature of law. He either doesn’t know or doesn’t care where law comes from. His view of government and of liberty and of the law itself is distinctly ANTI-American. And he is not alone. In fact, I would be hard pressed to name even a handful of current American judges who are actually qualified to hold the office.

Let me explain.

There is an American View of law and liberty and government. It was articulated very clearly by our founders in the first paragraph of the primary document of our founding. This is not surprising because the fundamental ideas expressed in the Declaration of Independence were thoroughly leavened throughout the American culture at the time of the founding. They actually constituted the religious and philosophical worldview of America and were the underpinning of the argument that declared the former colonies to be free and independent states.

Plain and simple, the American View is:

  1. There is a Creator God.

  2. Our rights come from Him.

  3. The purpose of any civil government is to protect/defend these God-given rights.

Isn’t that easy? Sure, it is! As a matter of fact, our fathers thought it was so simple and straight-forward that they claimed it to be “self-evident” as a matter of law. They said that it is not necessary to support it by argumentation. It’s what you might call a “given”,  a starting point, a pre-supposition.

One might say, therefore, that not to grasp, not to discern, not to understand and self-consciously act upon this first premise, would disqualify one from service to the country.

Which brings me to Chief Justice John Roberts, and Justice Sam Alito, and President Bush, and, for that matter, almost every Senator and Congressman in Washington today. They don’t understand, or act upon these first principles of America.

Let’s just examine one issue and see whether their statements indicate an understanding of American principles.

Do Courts make law?

During the recent confirmation hearings for Roberts and Alito, we were told time and again that Roe v. Wade is the law of the land. All the “actors” in the confirmation “drama” spoke and argued as if the decision in Roe was “law”. Some argued that the Justices should declare how they would rule on an abortion case and some said they should not have to. Some argued that the judicial records of the nominees indicated that, given the opportunity, they would act to stop the killing, while some argued that their respective records shows no such proclivity.

But all of the arguments began at the wrong place. All of the arguments missed the real point and reduced the “drama” to a farce.

Do courts make law? Well, what does the Constitution say? You know…the Constitution ? that document, signed by the representatives of the States on behalf of “We the people”, that claims to be the “supreme law of the land.” What does the Constitution say?

We don’t need to look far. The very first sentence of the Constitution gives us the answer. THE VERY FIRST SENTENCE!!!

Article One, Section One of the Constitution says that ALL legislative authority is VESTED in the Congress. So, it’s Congress that “makes law”. It’s the legislative branch ? NOT the judiciary ? that is VESTED with lawmaking authority and therefore, cannot delegate

(Divest itself) of this authority. Nor can another branch usurp this lawmaking power. So any attempt by the Congress to delegate the lawmaking function, as well as any attempt by the courts to assume the function, is a direct violation of the Constitution.

So, it comes to this: If courts can’t make law, then how can Roe v. Wade be law? Roe v. Wade is a court case. It’s a judicial ruling in the case of Roe and Wade. The ruling in the case, strictly speaking, applies to Roe and Wade and no one else!

So how can they call it “law” and get away with it? How can they have us all trained (dumbed-down) to think that the courts make law? Well, it’s because they have tricked us into thinking that precedent is law.

You see, there is a valid and long-recognized legal principle called “precedent”. Properly understood, precedent is a useful, helpful tool of the courts. But precedent is NOT LAW.

Sir William Blackstone, the famous English jurist and author of Commentaries on the Laws of England, explained that where the same points come again in litigation ? what we might call the same fact pattern ? it is proper and helpful for courts to look to the former cases and give weight to the former decisions for two reasons. Firstly, this helps to keep “the scale of justice even and steady” by promoting stability and a reasonable expectation in the community of how such a fact pattern will be adjudicated. Secondly, Blackstone applauds the use of precedent in that it requires a judge to be mindful that he is to decide cases “not according to his own private judgment, but according to the known laws and customs of the land.” Blackstone says that judges are “not delegated to pronounce a new law, but to maintain and expound the old one.”

So far, so good. Precedent, according to Blackstone, is a good thing.

It serves some useful purposes.

But how do we distinguish precedent from law? Again, Blackstone helps us to understand. He explains that where a “former determination” ? a prior ruling of the court ? is “most evidently contrary to reason” or “if it be contrary to the divine law” then it cannot be followed by a judge. This is because court rulings must always conform to God’s law. Blackstone’s reference to “reason” is a reference to what he calls the “Law of Nature”. In the Declaration of Independence, Jefferson uses this same language (Law of Nature and of Nature’s God) to justify the colonies right to self government.

Blackstone goes on to explain that when a judge determines that a prior ruling or series of rulings by a previous court are contrary to God’s law, he must abandon the precedent and make a decision ? a ruling ? that is consistent with God’s law. He must do this because the oath he takes is not an oath to follow the decisions of prior judges, but to judge righteously by God’s standard, by God’s law.

When a judge takes this proper action, he is not declaring the old law to be “bad law, but that it was not law”. In the same way, he does not pretend to make a “new law” but “to vindicate the old one from misrepresentation”.

Following this understanding ? this American understanding ? of law, we can see that the ruling in Roe v. Wade, even if adopted in statute form by the Congress or by a legislature of a State, still is not law.

Why not? Because it violates God’s law, or as Jefferson and Blackstone called it “The Laws of Nature and of Nature’s God”.

For example, if the Congress voted unanimously to say that we could kill “all women with red hair”, would this then be the law? Of course, it would not. Why? Because Exodus 20:13 says, “You shall not murder”.

If Congress voted unanimously that Michael Anthony Peroutka could float across his office, would this then be the law? No, it would be a nullity. Just like Roe v. Wade.

There you have it. Two reasons why Roe v. Wade is NOT law and should not be followed by anyone:

This is the true, real, original and authentic American view. Any judge or president or senator or county commissioner or dog catcher who doesn’t understand this and live by it is not qualified to hold elective or appointed office in America.

For God, Family and the Republic,

Michael A. Peroutka

Publisher, TheAmericanView.com

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