How could you take the most irrevocable law of nature — a man being a man and a woman being a woman — and twist it so the exact opposite becomes settled law? Leave it to the courts.
A constitutional right to force transgenderism on the states
In September, a federal district judge ordered Highland Local School District, a school district outside of Akron, Ohio, to treat a boy “as the girl she is” for all official school business. One cannot possibly conjure up a more radical manifestation of judicial tyranny than forcing school districts to violate the most immutable laws of nature. In any other generation, a judge like this would be impeached, the states would ignore the ruling, and Congress would immediately use Art. III Sec. 2 of the Constitution to remove such cases from the jurisdiction of federal court. Unfortunately, none of that happened and nobody in politics even knows or cares about this case.
Instead, plaintiffs were left with no choice but to appeal to the Sixth Circuit for a stay on the district judge’s ruling. Yet, late last week, in a 2-1 decision, the appeals court denied the request. Worse, they tipped their hand on the merits of the case, asserting the notion that “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination” is, in fact, settled law. Referring to the boy as “Jane Doe,” the court’s majority opined that the status quo in this case is transgenderism and that the plaintiffs didn’t even raise “serious questions on the merits.”
First, to the extent we should even engage in a debate with such metal illness and judicial lawlessness, the court’s argument that maintaining separate bathrooms for the sexes is discriminatory, is in itself, internally contradictory. As Ed Whelan explains:
The panel majority fails to recognize the elementary reality that a policy that requires a boy who identifies as female use the boys’ restroom does not involve sex stereotyping at all. On the contrary, that policy treats boys as boys, irrespective whether they engage in gender-conforming behavior. Likewise, that policy does not discriminate on the basis of gender identity: boys can’t use the girls’ restroom, whether or not they identify as female.
More foundationally, how have we stooped to a point in judicial supremacy that the court can not only rewrite legislation, constitutions, history, and traditions, but can alter the most immutable laws of nature and coerce their social transformation agenda on the states and the other branches of government? What’s worse, this comes from the Sixth Circuit, which is supposedly one of the “better circuits” with more Republican appointees. Yet, this decision comes on the heels of some other bad opinions from that circuit, such as the one in the Michigan recount and Ohio’s effort to clean its voter rolls.
Are we as a society going to continue peddling this myth of judicial supremacy even to the point which we allow them to declare the exact opposite of laws of nature as settled law?
Republicans cannot run away from the cultural Marxists on this issue. Within the next two months the Supreme Court will likely render a decision on transgenderism in Grimm v. Gloucester County School Board. Given that we already know where Anthony Kennedy stands on this issue, Grimm will serve as the transgender-version of Obergefell and have far-reaching and disruptive consequences for our society, culture, system of government, and religious freedom.
It’s time for the other branches to get in the constitutional arena?
The solution to this problem is very simple.
As a first step, Congress should pass and Trump should sign into law a judicial reform bill, removing from the federal judiciary jurisdiction to adjudicate any case forcing states or local school districts to redefine sexuality. It’s sad that we’ve reached a point when we even recognize that courts would have jurisdiction in the first place, but this step is unfortunately necessary. This move would redirect any litigation to state courts, whose judges are elected in most states. According to a recent analysis conducted by a sexual identity legal group, state courts that are elected are much less likely to issue rulings tendentious to its movement.
However, in order to act immediately and get around the legislative grind and the filibuster, Congress and the Department of Justice (under the helm of Jeff Sessions) must work to immediately block implementation and enforcement of judicial transgenderism.
The very source from which liberals draw upon to promote a powerful judiciary is also a repudiation of the notion that the courts have exclusive and final jurisdiction over constitutional interpretation. In fact, an honest understanding of judicial review requires that members of the other branches of government also act on their conscience to properly interpret the Constitution as it relates to the interaction of the particular issue with their powers.
The Truth About Marbury v. Madison
To begin with, the notion that a federal court could grant standing to a plaintiff to directly overturn a state or federal law on a broadly political/social issue, based on constitutional interpretation, is very dubious. Everyone agrees that the main job, if not the exclusive job of the federal courts, is to interpret the application of the statute, not to serve as a veto. That power was given to a governor or president.
The legal profession draws upon Chief Justice John Marshall’s opinion in Marbury v. Madison as the foundation for judicial supremacy and the power to veto statutes. Using Marbury, which did not involve a social issue of broad political consequence, as a source for judicial tyranny, is tenuous from the get-go. The opinion in which Marshall established judicial review was merely non-binding dicta because he already ruled that plaintiffs lacked standing to even consider the case. Moreover, he clearly misread the role of Congress and the court’s scope of original jurisdiction and should have recused himself because he was directly involved in the outcome of the case.
Putting Marshall’s political motivations aside, Marbury is actually a refutation of judicial supremacy, especially as it relates to those who interpret the Constitution as a living and breathing document. All Marshall meant by declaring that “it is emphatically the province and duty of the Judicial Department to say what the law is” was that, although the main job of the court is to interpret the statute, the Constitution is ultimately the supreme law of the land. Given that every judge swears an oath to uphold the ultimate law of the land — the Constitution — the court has a duty to grant relief to a plaintiff with legitimate standing against a law that manifestly violates the plain meaning of the Constitution as it was adopted. His main rationale was that for a judge to rule in an individual case against the Constitution, it would violate his oath of office.
Freeze frame: for that very reason, it is a violation of the oath of office for any member of the legislative branch, the executive, or the state governments to exercise their powers in contravention to the Constitution as they understand it because they take the same oath to defend the same Constitution as judges do.
Marshall never intended for the courts to be the sole and final arbiter of constitutional interpretation. He meant that even the courts, the weakest branch — that is unelected and wields “neither force nor will” over public policy — has a responsibility to uphold the Constitution because its members also swore an oath to do so. How much more so the executive branch with the power to enforce the laws and Congress with the powers to legislative and appropriate funds must work to uphold the Constitution as they understand it.
Now let’s returns to the contemporary courts whose members offer not a scintilla of original constitutional interpretation and blatantly seek social transformation on broadly political issues. Does anyone think for a moment that Marshall would have said to follow such nonsense?
Accordingly, in the case of transgenderism, here is what the other two branches can do. The courts were deliberately denied any mechanism to enforce or fund their decisions, which in itself should prove conclusively that they were not intended to have the final say on political issues. When the Supreme Court inevitably rules in Grimm in favor of mandating transgenderism on school districts, Attorney General Jeff Sessions should immediately write an opinion for the executive branch of government (on behalf of the president) saying that his version of the Fourteenth Amendment (and Title IX) actually doesn’t mention anything about a boy thinking he’s a girl. As such, for the purposes of executive powers, they will not enforce this decision. Therefore, if the ACLU sues a principle or school superintendent for not allowing a boy in a girl’s bathroom and they get a lower court to apply Grimm as precedent and issue a bench warrant to arrest that individual, Sessions can refuse to send out the U.S. Marshals to execute the warrant. This is how we avoid Kim Davis situations.
Likewise, members of the House and Senate Judiciary committees should write their own opinions stating that for the purposes of the legislative branch of government, their oath of office dictates that they must defund any federal action taken against a school board on account of the transgender agenda.
Similarly, state executive officers can then say that for their purposes of applying the Constitution, they will not send out state troopers to execute the warrant.
Perforce, the courts can “apply” the Constitution in the most dyslexic way imaginable to their hearts content as it relates to their job of adjudicating individual cases and controversies. But their ruling will be mere “judgment” and will have “neither force nor will” on public policy.
The point is just like there is judicial review, there is also executive review and legislative review (as well as state review). And those branches have a lot more force and will behind their “review” of the Constitution. Thus, the judiciary is not supreme in our system; the Constitution is supreme. And all the branches have a responsibility to uphold it. The entire reason why Marshall said courts can also get in on the business of constitutional interpretation is because if they were to ignore the Constitution as written and just focus on applying a patently unconstitutional law, it “would subvert the very foundation of all written constitutions.” By the same token if we allow only the courts to interpret the Constitution — to the point that they now mandate transgenderism on the states — what is the purpose of a written Constitution?
It’s time we finally right the ship on judicial supremacy. There is no better place to start than with their most egregious contortion of natural law.
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.