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Many Americans believe the Florida Supreme Court overstepped its boundaries. It elbowed its way into the controversy, first by taking the case, not on appeal of the parties but on its own motion. Then it set aside a deadline prescribed by the legislature and substituted its own, while cavalierly ignoring a federal statute requiring that presidential elections be decided by rules in place before the election. This was too much for even the U.S. Supreme Court (which has exercised judicial hubris itself); it unanimously vacated the Florida decision, remanding the case.

Undaunted, the Florida court came back, four of the justices again ignoring the critical statutes. Again, the U.S. Supreme Court acted, finding that decision unconstitutional.

But the Florida court's power grab is only the latest example of a court substituting its judgment for that of the elected representatives, a trend that began in the 1960s. That's when the Supreme Court "discovered" in the Constitution a new right: privacy. Later, in Roe v. Wade (1973), it applied this right to abortion, thereby striking down statutes restricting abortion in most states. Since then, this trend has accelerated dramatically.

In Romer v. Evans (1996), for example, a democratically enacted Colorado referendum barring special civil rights for homosexuals was struck down because Justice Anthony Kennedy divined that the voters were bigoted. Partial-birth abortion bans enacted in over 30 states met a similar fate.

Moreover, the justices seek to foreclose debate, brazenly asserting in the recent Miranda decision that they have sole authority over constitutional questions—a proposition that would have horrified our nation's Founders.

Contrary to popular belief, the Constitution does not give the Supreme Court that authority. Thomas Jefferson warned that giving "judges the right to decide what laws are constitutional" would make them "despots." His frequent adversary Alexander Hamilton expressed similar concerns. The Founders wisely decided that all three branches of government should share the responsibility for deciding constitutional issues.

History has come full circle as we face the dangers our Founders warned against. But what should especially alarm Christians in the face of judicial imperialism is the fact that courts running roughshod over legislatures will sever the tie between law and moral truth. The law, Augustine and Aquinas postulated, is the codification of the people's moral consensus informed by revelation. For centuries this conviction prevailed in the West and inspired respect for the law. Lord William Blackstone wrote, "This law of nature [is] dictated by God himself … no laws are of any validity if contrary to this"—a view echoed by Martin Luther King Jr. in his "Letter from a Birmingham Jail."

In Western democracies, the people, through their representatives, can ensure that the law reflects their moral traditions. But today's courts have increasingly attacked those morally based visions of the common good. Government (usually in the person of activist courts) today sees its role as protecting people from any "imposition" of moral truth.

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March 5 2001, Vol. 45, No. 4