This country is in need of a long debate about the 14th Amendment. Activist judges have used the equal protection clause as a cudgel to impose their political biases upon the American people. They set precedent and build upon it to the point where the original intent has been obfuscated in a cloud of judicial decrees.
No one can deny the equal protection clause was meant to protect ex-slaves and their progeny. This was, after all, a post-Civil War amendment. But the federal courts have completely bastardized the 14th to a point where they have dictated our immigration policy. Our illegal alien invasion is due to Supreme Court rulings such as birth right citizenship and mandating States educate illegal alien children.
Now our First Amendment rights are under attack by black robed thugs. Christians can no longer practice their faith outside of home and church. A whole slew of grievance mongers have obtained protected class status. Now, people of faith who own a business will be forced to participate in homosexual marriages. Was that the original intent of the authors of the 14th Amendment? I don’t think so!
Are we a constitutional republic or a judicial oligarchy? We’re supposed to have a federalist system that defines the roles of state and federal governments. That has been discarded. We are now in a post-constitutional era; an era where States are vassals to the federal ummah.
Many believe this ideological divide is just between liberals and conservatives. Libertarians also have an expansive view on the role of the judiciary. Damon Root of Reason Magazine stated the following on Carolina Journal Radio:
Root: Well, there’s very much an alliance between libertarians and conservatives that’s ongoing right now. But there is this fundamental disagreement, and when I say conservatives, I’m really referring to the Robert Bork school of legal conservatism that puts great emphasis on judicial deference. In his book, The Tempting of America, Robert Bork wrote, “In wide areas of life, majorities are entitled to rule if they wish, simply because they are majorities.”
And he called that the first principle of our system, and the libertarian response is, well, the first principle is individual rights, and majority rule comes second. Those visions don’t clash in every case, but in some very fundamental ways, they really are at odds. So we see this alliance holding together sometimes but then really butting heads other times.
Kokai: Reason magazine, for those who are unfamiliar, is a libertarian magazine, so I would suspect that you and folks who work with you would like to see the courts be active when it comes to protecting these individuals rights, rather than just defer to the lawmaking braches.
Root: The libertarian legal view is basically that the Constitution is a liberty document. It protects a broad range of individual rights, both written down in the Constitution, but then also unemunerated rights, and that also the Constitution places strict limits on government power. And libertarians very much want to see the courts act as a check on the other branches of government and really have a fundamental problem with Bork’s framing of majority rule first above individual rights.
There is also the federalist view which is the Constitution enumerates the powers of the federal government, anything beyond that is left up to the States, hence, the 10th Amendment. Libertarians seem to have a problem with that.