…the personal pride of individuals will always seek to rise above the line, and to form somewhere an inequality to their own advantage.
Alexis de Tocqueville
America’s founders tried to constrain those who governed the country. They understood human fallibility. They also understood that some people always believe they are above ordinary people. Wikipedia describes such a person in a quote from Plato’s Dialoge Gorgias:
Callicles argues the position of an oligarchic amoralist, that it is natural and just for the strong to dominate the weak and that it is unfair for the weak to resist such oppression by establishing laws to limit the power of the strong.
America’s Constitution does exactly that. It gives those who govern permission to do a limited number of things. Several states weren’t satisfied that it was clear enough and wanted more language added. We call that the “Bill of Rights.” The tenth, and last, is as clear as possible:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Our founders established laws to limit the strong. Yet even that was not enough. F. A. Hayek noted in The Road to Serfdom that, starting in 1840,
The ideal of a society organized “through and through” from the top has in Germany been considerably furthered by the quite unique influence which are scientific and technological specialists were allowed to exercise on the formation of social and political opinion.
That concept spread to Europe, England and America. In England, the self-appointed formed the Fabian Society, which is still active. Their American counterparts took a similar but different approach.
Johns Hopkins University was formed in Baltimore in 1876. Its original faculty included people who had studied in Europe, including Berlin. They were awash in the popular concepts there.
Wikipedia describes the history of political science. The first large-scale training of American political scientists began at Hopkins. The field’s founding professors included Westel Woodbury Willoughby and Herbert Baxter Adams. Woodrow Wilson received his Ph.D. from Hopkins before moving to Princeton, becoming a leading figure in political science, and later serving as Princeton’s president.
Wilson explained why the “best and brightest” shouldn’t be limited by the founders’ ideas when he wrote the following in What Is Progress (1913)
All that progressives ask or desire is permission― in an era when ”development, evolution,” is a scientific word― to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.
This is the idea of a “Living Constitution” where the judges can amend it to “suit the times” as they deem necessary. The founders assumed voters, through the elected representatives, would make changes and even amend the Constitution, if needed. The new elitists assumed they were better equipped to make the wisest decisions. Raoul Berger, in Government by Judiciary, called this government by judges a “Juristocracy.”
What followed was ever-increasing judicial lawmaking, blatant interference with the other branches of the federal government, and total domination of state and local government. The public increasingly felt that their votes didn’t matter and that government wasn’t responsive.
The Supreme Court also used something called the “Chevron Doctrine,” letting “experts” in the executive branch become a combination of lawmakers, law enforcers, and their own judiciary.
In many cases, the Supreme Court decided issues where voters ought to have had some say. The most prominent recent case was the “same-sex marriage” case called “Obergefell.” The Court ordered every state to license and recognize same-sex marriage. It was a very divisive issue. The public had not reached the level of agreement needed to pass national law, let alone a Constitutional Amendment.
The Court majority overrode that and decided the text mandated the change. Chief Justice Robert’s dissent describes the issues and the problems. He starts by describing two purposes of marriage. One is the love and the commitment of the partners. The other is society’s interest in producing and raising children.
I will quote at length from his dissent:
The Court is not legislature. …judges have power to say what the law is, not what it should be
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A State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.
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the Court … orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
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this dissent is about … whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.
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Those who founded our country … would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges
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The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it.
In his dissent, Justice Alito explained why the idea of a “Living Constitution” is so enticing. If you are certain your purposes are noble, it is “the temptation to achieve what is viewed as a noble end by any practicable means.”
Justice Scalia closed his dissent with a warning:
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.