This summer, British voters defied their political masters and media puppeteers, by voting to leave the European Union (EU).  Conservatives across the West rejoiced—this was globalism’s death-knell.  Nigel Farage, Brexit’s hero, even campaigned alongside Donald Trump, lighting fires across the Atlantic.

nigel-farage-donald-trump

Nigel Farage campaigning with Donald Trump post-Brexit.

But this victory is being stolen.

Today, Britain’s High Court ruled that the referendum, which Brexit won by nearly 4 points, did not give Britain’s government the right to trigger Article 50, and thus irrevocably withdraw from the EU.  Instead, Chief Justice Lord Thomas says that Parliament must vote on the matter.  Essentially, the referendum was not binding, it was nothing but a fancy opinion poll.

Farage rightly states that this provides ammunition to the liberal elites, who seek to betray the people’s will by ignoring the referendum’s results.  There is speculation of a “half-Brexit”, where the treaties are renegotiated, but Britain does not unilaterally withdraw.  Britons are being betrayed.

Why should Americans care?

Because we have the same problem: an activist Supreme Court (SC).

True, the Court hasn’t yet overturned an election, but that’s the next step.  Our judges are used to legislating from the bench, as opposed to strictly upholding and applying the Constitution.  How do they do it?

The SC reinterprets the Constitution by reading in provisions and rights that do not exist within the text.  Essentially, they give the same weight and authority to implied (unwritten) rights as they do to explicit (written) rights.  Where do they get those implied rights?  They make them up.

That’s right.  The SC literally makes stuff up and says it’s Constitutionally protected, which means that our government cannot legally change it.  The SC has final say.  They have absolute power.

This is dangerous, since judges are appointed, not elected.  This means that the American people cannot recall an overtly activist judge.  Also, since judges sit for life, they are free to rule like kings until they die.  Once they’re in, they’re in.

Speaking of death: Justice Scalia’s passing opened up a new spot on the SC which the next president will fill.  This is one of the most important issues of this election.  If Clinton wins, she will appoint a liberal, activist judge, who will continue to undermine the Constitution, long after Clinton is gone.  Trump, however, has put forward a list of his preferred judges, all of whom are strict constitutionalists: meaning they will preserve the Constitution’s text, rather than expanding it to include God-knows-what.

But isn’t it the SC’s job to interpret the Constitution, and keep government in check?  And isn’t it a good thing that they read in rights, since that’s how they stopped segregation and the Jim Crow laws?

Yes, but the SC goes way beyond that.

As for segregation, the SC did not imply new rights, it applied existing rights to everyone.  This is a good example of the SC doing its job.

But there are many examples of it behaving badly.  For example, in Roe v Wade (1973) the SC said that access to abortions was a constitutionally guaranteed right.  Now, whatever your personal stance on abortion, we can all agree that nowhere in the Constitution does it even mention the word “abortion”.  The SC made it up.

The same is true for gay rights.  Don’t misunderstand me: I’m not saying that gender minorities shouldn’t have rights.  But, I am saying that there is no right to sex-sex marriage in Constitution, which is what the SC said in Obergefell v Hodges (2015).  Look it up, I guarantee you won’t find the word “homosexual” anywhere—in fact, you won’t even find the word “marriage”.

If the Constitution doesn’t enshrine marriage as a right, how can it guarantee same-sex marriage?  It doesn’t.  The SC made it up.

I’m sure you noticed that my examples make it look like judicial activism is a one-way street towards “progressive” liberalism.  That’s because it is.  The SC routinely overturns common-sense conservative legislation (like voter ID laws), but upholds radically left laws and programs (like Obamacare).

Even DC v Heller, where the SC narrowly voted in favor of upholding the Second Amendment, was not a conservative victory—it was just the legally correct choice.  The fact that it was even disputed is itself troubling.

Although it’s Britain’s High Court that’s making the headlines today, it will be ours tomorrow.  This election isn’t just about who will be the next President, it will also determine the outcome of the SC for the next generation.  America’s fate hangs in the judicial balance—will it be Clinton or Trump who tips the scales?

 

 

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Posted by Spencer P Morrison

JD candidate, writer, and independent intellectual with a focus on applied philosophy, empirical history, and practical economics. Author of "America Betrayed" and Editor-In-Chief of the National Economics Editorial. Say hi on Twitter @SPMorrison_

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