Nobody who is a regular reader of this column should be surprised by today’s injunction in favor of Jim Acosta getting his press badge back. After all, if a single judge has the power of God and can redefine marriage, create a right for seven billion people to immigrate, and create a right to 30 days of early voting, there’s literally nothing a court cannot do. If someone can force his way into our country and litigate rights and citizenship for his kids against the national will, why can’t an American opinion journalist force his way into the White House? I guess I can now obtain a press pass as well.
“Whatever process occurred within the government is still so shrouded in mystery that the government could not tell me at oral argument who made the initial decision to revoke Mr. Acosta’s press pass,” wrote Judge Timothy Kelly of the U.S. District Court for the District of Columbia in his ruling against the White House. Now, the president must publicize a process for press badges, just as the courts tell us he must show his work on who gets to come into the country.
This injunction by a Trump appointee judge proves every thesis I’ve been positing about the judiciary since I started this column and since I wrote Stolen Sovereignty.
At its core, what we are seeing today runs much deeper than the outcome of a press badge for one highly paid professional protester. We have a judicial system that has flipped the whole concept of fundamental rights on its head, so that a real right is violated but a privilege is treated like an inalienable right. Thus, I don’t have the right to my own property and conscience not to be forced to serve a homosexual wedding, but someone else has a right to my involuntary servitude. I don’t have a right to pray in public, but I have a right to access the White House. Anyone living in, say, Somalia has a right to immigrate, and illegal aliens can sue law enforcement and win civil damages against them because they merely follow the law.
It would be bad enough if any branch of government held such views on the foundation of fundamental rights, but the fact that our political system regards the courts as supreme to the other branches essentially makes us a judicial form of North Korea. We are told there’s nothing we can do about it.
Let’s go back to the basics of what a fundamental right is
A right is the principle that we are entitled to live without government applying actions against our lives, liberty, or property and, as Sam Adams added, “together with the right to defend them in the best manner they can.” Seeking a visa, a marriage license, or a press pass is a positive privilege I’m seeking from government. They are not fundamental rights. Merely being left alone and being allowed to run my property according to my conscience and defend it with a weapon are fundamental rights.
Clarence Thomas explained this point in his dissent in Obergefell. “The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits,” wrote Thomas in response to the court creating a right to the recognition of a gay marriage. Thomas concluded by noting that “Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State.”
A court is not a legislator or an executive
Which brings me to another point. Even if one wrongly posits that the courts have the final say in vetoing a government action over a broad political question, that would only apply to negating an overreaching action of the government. But to demand that the government take a definite action left up to the executive branch, not the judiciary, such as granting a visa or a press badge, is beyond any scope of judicial power.
Our Founders would be shocked to watch an executive branch servilely accepting a judiciary that alters our immigration policies or grants unfettered access to the White House to a single individual at the behest of a single district judge. At this very moment, thanks to previous court decisions, the administration is letting in the caravan invaders and is defending a half-baked asylum regulation in court because, evidently, we are all OK with foreign nationals getting standing to sue to break into our country. The executive branch, operating under its own duty and prerogative of interpreting the Constitution, should ignore lawless rulings from the bench.
Why don’t we have the right to a press pass to all judicial chambers to ask the judges questions on all their opinions that violate our settled laws and fundamental rights? If the judiciary is now going to be the sole and final expositor of culture, politics, sovereignty – and press badges – shouldn’t we direct our press inquiries to the branch that holds the real power? And if “freedom of the press” now means physical access to the building, why won’t Judge Kelly hold a press conference with me sitting in his chambers?
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.