In his discussion of the judicial aspect of executive power, Montesquieu observed that “If it is joined to the legislative power, the [judicial] power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it is joined to the executive power, the judge would be able to wield the force of an oppressor.”
The framers of the U.S. Constitution took Montesquieu’s observation to heart. As a result, the U.S. Constitution assigns the judicial aspect of executive power (which the Constitution calls simply “the judicial power”) to a separate branch.
I seriously doubt that most Americans have any sense of the underlying relationship between the executive and judicial powers assigned, respectively, to those branches of their national government. If they did, they would realize that the commonly received notion that the SCOTUS has any material power to “strike down” laws is absurd on the face of it.
As Hamilton observes (Federalist 78), the SCOTUS has no executive force whatsoever. It controls neither the sword nor the material resources to procure one. The president of the United States is the minister of government who ultimately commands the use of the sword, and the Congress of the United States represents the sovereign will authorized by nature and the Constitution to procure the resources required to forge and make use of it.
So, what is the power of the SCOTUS? If and when its judgments appear to be in accordance with Constitution and the laws made in pursuance thereof, it has the power derived from the respect that the people of the United States owe and are inclined to give, to those acts, which they themselves have directly or indirectly authorized. This is, by and large, the power of opinion. When serious challenges arise to the Constitution and the laws, however, it is also the power derived from public support for the actions required to defend them. If and when the public is sufficiently divided, this may prove to be no power at all, unless and until the division is erased, one way or another, by actual combat.
So far, this has happened only once in our nation’s history. We know the nation survived that contest, despite the terrible toll in life, grief and material loss inflicted on both sides. We know Americans came together again after the Civil War, under the aegis of a Constitution altered, according to its terms, to reflect the decisive outcome of the war. We know that the reunified nation rose to become preeminent among the nations of the earth during the 20th century; and that we survive, however tenuously, in that position to this day.
But we rarely if ever reflect on the characteristics and circumstances that made it possible for us to do so after the temporarily fatal wound opened in our midst by the contentious issue of human enslavement. This lack of reflection owes much to the fact that the conflict itself sprang up from the common ground of moral understanding that had united the people of the United States from the first moment they appear as such in the world.
In their first utterance, the people of the United States declared their reliance upon “the laws of nature and of nature’s God.” In their explication of the common sense of justice that united them in rebellion against the British monarch, they avowed their common regard for the rights, endowed by God upon all human beings, which was their determination to reclaim and defend from the ravages of a rule they regarded as intolerably oppressive. The American people stood upon the ground of their religious conviction, whereby justice forbids any and all human governments from interfering with their God-endowed rights.
In line with this conviction, they understood rights to be all those actions and activities “according to the laws of nature and of Nature’s God,” wherein they pursued their own good and that of their families and communities. To that end, they formed governments, established by the mutual and common will whereby they covenanted righteously together, in pursuance and defense of those activities.
President Lincoln accurately perceived the tragedy of the Civil war when he observed that both sides “read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes. ‘Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.'”
A little more than a month after delivering this address, Lincoln would fall victim to the war the people of the United States survived to mourn intact. For half a century following his death, Americans renewed their dedication to the project of building a nation that would transcend the bitter irony of their beginning, and the more bitter experience of the fiery crisis in which their common good will, unalloyed with evil, should have reforged their union as a people. Even in this degenerate era, who fails to see proof of this good determination in the battles we fought repeatedly – time and again, at home and abroad – in the twentieth century, for liberty, self-government and just peace.
Even at the beginning, our activities did not go untainted by the agendas of ruthless greed and exploitation that never have and never will cease to plague every decent human endeavor, until Christ comes again. But socialist ideologues these days want us to identify our nation with all the evil ones and forget (with deeply racist prejudice, which they foment under the rubric of “white privilege”) the good. However, their tactic reveals the evil provenance of their ambition. Its racist tenor serves to disguise its true target.
The totalitarian ideologues do not mean to diminish the power of whites (most of those manipulating events from behind the scenes are white). They mean to eliminate the true source of America’s greatness – which was, and still must be, our respect for the authority of God. It must, or else we perish. As I noted in my article last week, the symptoms of our death throes are already upon us as “identity politics” moves to displace the politics of justice, rights and righteous liberty that ought to be hallmarks of our common sense of decency. The latter politics revels in the goal of our union: E Pluribus Unum (Out of many, One). The former conceals (and seeks to implement) a new motto: De Chao, Potestate (Out of Chaos, Power).
Tragically, from our human perspective, the only power we truly own is the power to destroy our own souls. Isn’t this why, in the socialist program of the Democrat Party the primordial, non-negotiable demands are all about whom we may kill with impunity – babies, the elderly and (soon and very soon) all who persist in worshipping the God of all Creation – in whose sight we are all equally responsible for respecting His gift of human life.