Will SCOTUS Nominee Ketanji Brown Jackson Uphold the Divine Right of Progressive Judges?

By Sydney Archer

Now that Joe Biden has nominated Ketanji Brown Jackson to be the next justice of the Supreme Court of the United States, the questions about her judicial philosophy will begin in earnest. Will she be a judicial activist? Will she show deference to precedent and the legislative branch? What is her view towards the separation of powers between the branches of government? These are all good questions, but they miss the point.

The Biden Administration will require that Ketanji Brown Jackson have only one overarching principle with respect to her judicial philosophy – that is to uphold the method of interpreting the Constitution which would be most accurately described as the divine right of progressive judges. This method of Constitutional interpretation has been used by progressive judges since the 1930s, and it has radically altered the meaning of the authentic Constitution which has been adopted and amended through the years by we the people.

What is this divine right of progressive judges and why have you never heard of it?

The divine right of progressive judges is the right – nay, the duty - of every progressive judge to decide Supreme Court cases based on one factor – what decision will advance the progressive agenda. It is progressive judges ignoring the clear meaning the Constitution in favor of their own progressive values and beliefs.[1]

But the Court always couches these decisions in innocuous-sounding euphemisms. Whenever progressive judges have found it necessary to change the plain meaning of the Constitution, they refer to “judicial pragmatism,” and progressive legal scholars back them up by claiming the Constitution is “a living Constitution” that must change with the times. These are nothing more than clever words to hide the fact that progressive judges have imposed their own beliefs and changed the plain meaning of the Constitution.

And when there are challenges to the many progressive decisions made by the court over the past eighty years, these same progressive judges and scholars rediscover stare decisis and demand adherence to precedent. They argue against activist judges and in favor of deference to the Congress and the will of the people. Whenever they sound conservative, it is only to uphold their prior progressive decisions.

In these ways, progressive judges use whatever legal argument they need to reach a decision to further the progressive agenda – a progressive agenda that strips Americans of their natural economic rights in favor of complete government control of the economy and at the same time limits the will of the people by creating new “rights” to advance their own views with regards to social justice and sexual mores.

As I will demonstrate, the divine right of progressive judges is real. It has radically altered the Constitution and the relationship between we the people and the government. And it is a completely illegitimate method of deciding cases with no moral authority to bind the American people to those decisions. It is at the very core of what is tearing at the fabric of American society.

Say Hello Again to the Divine Right of Kings

If you think that this sort of arbitrary decision-making sounds an awful lot like the divine right of kings, you are correct. It is. But instead of having a king or queen anointed for life imposing his or her will on the people, we have a small group of progressive judges appointed for life imposing their progressive ideology on the people.

And yet the very reason for our founding was to throw off the right of divine kings or anything like it in favor of a government established by the people to secure our natural rights. But now the branch of government that is least accountable to the people acts like an aristocracy – a body of nobles – to decree what is constitutional and not constitutional according to their own progressive whims and not on the plain meaning of the Constitution to which the people have given their consent.

America’s Path to Rule by the Divine Right of Progressive Judges

So how did we get here? How did a nation that threw off the divine right of kings become ruled over by the divine right of progressive judges? It helps to review how we started. One idea was central to our nation’s founding - the divine right of kings was to be replaced by government established by the people to secure their natural rights.

As Thomas Jefferson wrote in the Declaration of Independence “…to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Jefferson went on to write, “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…”[Emphasis added] With these words, the thirteen colonies placed before the world the principles that a government’s legitimacy is birthed from the consent of the governed for the purposes of securing their natural rights and that the right to alter or abolish a form of government rests solely with the people.

Thirteen years later the United States ratified the Constitution with these principles as its foundation. It was a constitution established and ratified by “we the people” in order to “secure the blessings of liberty” and could only be amended by the people through the amendment process.

George Washington reiterated in his Farewell Address the fact that it was the people consenting to the Constitution that gave it much of its legitimacy when he said “The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”

Washington confirmed what the Declaration of Independence declared and what the Constitution put into practice, that the divine right of kings or anything like it had no legitimacy as a basis of government. The legitimacy of the Constitution of the United States of America is like a three-legged stool. The first leg is that it derived its powers from the consent of the governed. The second leg is that it was instituted to secure the natural rights of its citizens. The third leg is that the right to alter their form of government was given solely to the people through the amendment process. Upon these three legs rests the legitimacy of the Constitution. But take any one of these legs away and the legitimacy of the Constitution falls and what Washington referred to as our sacred obligation to obey the Constitution would disappear.

Most of us learned in ninth-grade civics that in order to secure the blessings of liberty, our Founders separated the powers of government into three branches. Those branches which they believed would have the greatest impact on the people, the legislative and executive, would have the greatest accountability to the people with elections every two, four, and six years.

However, the judicial branch in the form of the Supreme Court and the various courts of appeal would have lifetime appointments. Once in office judges would only be accountable to the legislative branch in the form of impeachment. But their only duty was to decide cases that came before it and to enforce the Constitution that had been ratified unanimously by the various states. If that was their only duty, how much harm could they do? It’s not like they would ever do anything crazy like try to amend the Constitution themselves. After all, that right was explicitly written into our governing document that no one other than the people through their respective states could amend the Constitution.

For a Supreme Court to change the Constitution and take away any natural rights of the American people would cut off all three legs of legitimacy upon which the Constitution rests. At one time in our history, it would have been unthinkable to consider the Court capable of such an unconstitutional and illegitimate act.

1789 to 1935 – The Supreme Court Upholds the Original Meaning of the Constitution

From 1789 to about 1935, the Supreme Court with few exceptions interpreted the Constitution faithfully according to the meaning it had when ratified and adopted by the people through their respective states. Powers delegated to the federal government were limited in order to secure the natural rights of the people.

This limit on the federal government’s power was most apparent in the Court’s narrow interpretation of Congress’ power under the Commerce Clause to regulate interstate commerce. The Court’s interpretation followed the meaning and purpose of the Constitution by securing the peoples’ economic rights, which were a large part of natural rights as understood by those who ratified the document.[2]

The fact that economic rights were a significant part of our protected natural rights was again confirmed by the passage of the Fourteenth Amendment. In the debates leading up to the passage of the amendment, Congress was clear that these same natural rights would now be protected from intrusion by the state governments as well.[3]

The Progressives’ Fight Against the Constitution and Natural Rights

But beginning in the late 19th and 20th century, prominent progressives began to push back against this concept of a government established to secure natural rights. In their quest for building a utopian society through government administration, the progressives argued against a constitution based on securing natural rights in favor of one that was dedicated to government administration that could change with an ever-increasing complex society. The quaint ideas of the Founders would have to be discarded so that government would be free to meet the demands of a new age and create a progressive utopian society.

But one thing stood in the way of the progressive movement – the Constitution. Progressive leaders of the time realized that these pesky words, which were ratified and adopted by every State of the Union, severely limited the power of the federal government. The only thing standing in the way of their progressive utopia was this old, stale document that clung to outdated principles that would not work in the modern world. Yet, even at the peak of its popularity, the progressive movement could never come close to getting the supermajority needed to amend the Constitution.

And so the idea of a living Constitution, one that would grow and evolve in a Darwinian fashion, was birthed by the progressive movement. Woodrow Wilson spoke and wrote at length of the need for a Constitution bound not by the laws of Newtonian physics but by the laws of Darwinian evolution so it could grow and change with society.[4]

The term “living Constitution” was coined by Professor Howard Lee McBain in his book by the same title published in 1927.[5] The progressives made it clear that they were not to be bound by the words on the page when interpreting the Constitution. They were not to be bound by what had been consented to by the people. Now they just needed the opportunity to impose these new ideas.

FDR’s Court Packing Scheme and the Emergence of a Progressive Supreme Court

Finally, with the Great Depression and the election of Franklin Delano Roosevelt, the Progressives seized their opportunity to implement their utopian ideas of an administrative state. Congress quickly passed numerous New Deal laws greatly expanding the administrative state and the role of the government in the economy.

But the Supreme Court continued to interpret the Constitution as it had for the previous century and a half and quickly struck down many of the New Deal provisions stating that Congress did not have the Constitutional authority to enact such laws that violated a person’s natural economic rights.[6] This enraged FDR and the progressives who even at the height of the Great Depression never even attempted to amend the Constitution to limit the natural rights of American citizens.

So after his landslide victory in 1936, FDR proposed his scheme to pack the Supreme Court in order to ensure a progressive majority that would decide in favor of the New Deal legislation. While the court-packing scheme went nowhere in the Congress, the threat of packing the Court caused two justices to change their opinions on the Constitutionality of the New Deal programs.[7]

Congress Takes Control of the Economy – Goodbye Natural Economic Rights

Within a few short years, the progressive majority of the Supreme Court radically changed its interpretation of the Constitution. Natural economic rights were for the most part discarded with a re-interpretation of the Commerce Clause which when used in conjunction with the Necessary and Proper Clause gave Congress almost total and unfettered control over the economy.

To take control of the economy a vast administrative state has been erected wielding all the powers of government which the Constitution intended to separate into the three branches. We see federal agencies with the power to enact laws(now referred to as regulations), the power to enforce those laws, and the power to make decisions on legal objections to those laws. And many of these agencies while technically inside the executive branch, are outside the president’s power to hire and fire people in these agencies.[8]

Congress has established an unelected bureaucratic administrative state accountable to almost no one to oversee nearly every facet of our economy. Many of our natural economic rights which our government was established to protect have been stripped from us by that very government.

Progressive Judges Impose Their Morality on Social Issues and Sexual Mores

Once the Supreme Court embraced the progressive agenda, it embraced not just the economic aspect of progressivism, but also its views with regards to social issues and sexual mores. But why would a progressive Supreme Court attempt to impose its views on such matters? Why not leave them for the people to decide in their various states as had been the case since our founding? The answer is found in the progressive movement’s goal of creating a utopia through the administrative state.

The progressive movement was based on the idea that rights come from the state, not from our Creator.[9] If the government was to be the foundation of society, then it would have to remove and replace other foundations such as religion and the family. And so the progressive Supreme Court began to make government the foundation of our society by first attacking religion in the public sphere.

Beginning in 1947, the progressive Supreme Court began to re-interpret the establishment clause putting in place “a wall of separation” between church and state that is not in the First Amendment and not part of its original meaning.[10] In Evenson v. Board of Education, the Court took Thomas Jefferson’s letter to the Danbury Baptists out of context and began to interpret the establishment clause as it had never been interpreted before.

The establishment clause of the First Amendment reads “Congress shall make no law respecting an establishment of religion.” However, in the series of cases following Evenson, the progressive Supreme Court began to interpret the establishment clause to read “Congress shall make no law respecting religion.” It was understood that establishments of religion were specific denominations and that religion itself was the belief in God or a Supreme Being. The Court essentially read the establishment clause without the words “an establishment of” thereby radically changing the meaning of the clause so that the Court now restricts the government from passing laws respecting religion – the belief in God - and not just establishments of religion.

The impact of this new interpretation had dramatic effect in 1963 when the Court ruled that public schools could not read the Bible or lead students in prayer if it was not for a secular purpose.[11] In essence, the Supreme Court ruled that a government which was founded upon the idea that our rights come from our Creator could not thank the Creator in public schools nor encourage students to do so.

Given the current interpretation of the Supreme Court, it is most likely considered unconstitutional for a teacher to tell her students as a matter of fact that we are endowed by our Creator with certain inalienable rights. The absurdity of such an interpretation to anyone who ratified the First Amendment shows the lengths to which progressive judges will go to impose their views on America.

Then beginning in the 1960s the Court turned its attention to the area of sexual mores surrounding marriage and procreation culminating in the seminal case of Roe v. Wade making abortion a right.[12] Since our founding, this was an area that states could and did regulate as it dealt with the very definition of human life and the protection of that life. But a progressive Supreme Court created a right to an abortion where none had ever been thought to exist.

The Court continued in the sphere of sexual mores by redefining what constitutes marriage when it declared the right of people of the same sex to marry and struck down all the state constitutional amendments declaring marriage to be between one man and one woman.[13] Prior to this decision, the Court had ruled that state governments could restrict and regulate marriage in a number of ways such as by age and the number of husbands or wives one person could have. The Court acknowledged that marriage was both a sacred and civil contract that due to its very nature and the effects it has on society could be regulated by society.[14]

In these cases involving the sexual mores of the people, the progressive Supreme Court was altering the very definition of liberty. The idea of liberty as understood by our Founders was a liberty that was bounded on one side by tyranny and on the other side by licentiousness. It was understood that liberty was liberty in an ordered society.[15] Liberty did not give a person license to do whatever he or she desired. And so the people could regulate the foundations of that ordered society which included marriage and family.[16]

But now the progressive Supreme Court was inserting itself into a sphere that had always been reserved for the people in their various states. Once again, the Supreme Court was imposing its progressive views on the American people and redefining the very idea of liberty to impose those views.

Conclusion

The Progressive Supreme Court has literally turned the Constitution on its head. Economic rights which were always a significant part of natural rights have been nearly destroyed. At the same time, progressive ideas on religion and sexual mores have been advanced by reinterpreting certain clauses and creating new “rights” where none we ever thought to exist.

This changing of the Constitution by progressive judges cuts off all three legs of legitimacy upon which the Constitution rests. This progressive interpretation of the Constitution was never consented to nor ratified by the American people. The changes to this sacred document were not passed through the amendment process but imposed upon us in the most illegitimate manner possible – through a small group of unelected progressive judges imposing their will on the people without repercussion. These illegitimate changes to the Constitution have created a government that no longer does what it was established to do – to secure the rights of we the people.

And since this progressive interpretation of the Constitution lacks any legitimacy, we the people have no moral obligation to obey it. It is only the coercive power of the state that keeps the people from standing up and saying no to this progressive takeover of our Constitution and our country.

This illegitimate interpretation of the Constitution by a progressive Supreme Court is at the heart of my debut novel, Shay’s Rebellion, due out in April. In Shay’s Rebellion our protagonist, Shay Richardson, stands up and says no to the divine right of progressive judges. She says no more to their long train of abuses. The progressive left, knowing that this is the source from which all their power derives, unleashes hell on this young woman who is willing to speak the truth. They must silence her before the truth spreads. And that truth is that the progressive left rules illegitimately by the divine right of progressive judges – an idea completely at odds with the founding and fabric of our nation. We have felt that fabric tearing with every unconstitutional progressive decision made by the court over the past eighty-plus years.

President Biden and his team of progressive leftists have no intention of ceding the power they have gained through the Court. It is why they have pushed the idea of packing the Court with new progressive judges. And it is why their nominee, Ketanji Brown Jackson, will fully embrace the divine right of progressive judges. And with each subsequent progressive court ruling, the fabric of our nation will tear a little more. The only question is what will be the final tear that pulls the country apart. That in the end is what this nomination is all about.

ENDNOTES [1] Conservative judges may also from time to time join with progressive judges in ruling by this divine right. See NFIB v. Sebelius, 567 U.S. 519 (2012) where Chief Justice Roberts changed his vote and upheld the Affordable Care Act by inventing a last-minute, statute-saving construction calling the mandate to buy insurance a tax. This Constitutional method of interpretation is also known as “making it up as you go along.” [2] See Corfield v Coryell, 6 F. Cas. 546 (1823) – Justice Bushrod Washington’s often-quoted decision demonstrates that economic rights were understood to be a significant part of natural rights as understood by those who ratified the Constitution. Among our natural rights, Justice Washington includes “… the right of a citizen to pass through, or reside in any other state for the purposes of trade, agriculture, professional pursuits, or otherwise;… to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by other citizens of the state..” Id at 551-552. [3] See Randy E. Barnett, “Restoring the Lost Constitution: The Presumption of Liberty” (Updated Edition – 2014), p62-64. If you want to know the actual meaning of the authentic Constitution, the one that was ratified and amended by we the people, then read this book and others by Professor Randy Barnett. His scholarship and research is second to none. In this book you will come to fully understand all the clauses of the Constitution the Supreme Court has discarded and with them many of our natural rights. [4] See Ronald Pestritto, “The Birth of the Administrative State: Where It Came From and What It Means for Limited Government” (November 20, 2007), p11-13 of 31 citing Woodrow Wilson, “The Art of Governing” (November 5, 1885) and “Notes for Lectures at Johns Hopkins” (January 26, 1891) from the Papers of Woodrow Wilson Vol. 5 p52 and Vol.7 p122 respectively. [5] Howard Lee McBain, “The Living Constitution: A consideration of the realities and legends of our fundamental law (January 1, 1927). [6] See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) striking down the National Industrial Recovery Act; Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935); United States v. Butler, 297 U.S. 1 (1936) striking down the Agricultural Adjustment Act. [7] See West Coast Hotel v. Parrish, 300 U.S. 379 (1937); Wright v. Vinton Branch, 300 U.S. 440 (1937); Virginia Railway v. Federation, 300 U.S. 515 (1937). [8] See Ronald Pestritto, “The Birth of the Administrative State: Where It Came From and What It Means for Limited Government” (November 20, 2007), p23-24 of 31 citing Humphrey’s Executor v. United States, 295 U.S. 602 (1935). [9] See Ronald Pestritto, “The Birth of the Administrative State: Where It Came From and What It Means for Limited Government” (November 20, 2007), p17-18 of 31 citing Frank J. Goodnow, “The American Conception of Liberty and Government” (Providence, RI: Brown University Colver Lectures, 1916), p11. [10] See Evenson v. Board of Education, 330 U.S. 1 (1947).

[11] See School District of Abington Township v. Schempp, 374 U.S. 203 (1963). [12] Roe v. Wade, 410 U.S. 113 (1973). [13] See Obergefell v. Hodges, 576 U.S. 644 (2015). [14] Reynolds v. United States, 98 U.S. 145 (1878) in its unanimous decision upholding a law against polygamy the Court stated “Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.” Id at 166. [15] See Matthew J. Peterson, “The American Founding Was Not Libertarian Liberalism” (June 14, 2019) published in The American Mind at www.americanmind.org. In his article Peterson explains the Founder’s understanding of liberty in an ordered society versus licentiousness. In the article he quotes James Wilson’s 1788 “Oration on the Fourth of July” celebrating the new Constitution, where Wilson stated, “among the virtues necessary to merit and preserve the advantages of a good government, I number a warm and uniform attachment to Liberty, and to the Constituion,… [t]he enemies of liberty are artful and insidious…. A counterfeit steals her dress, imitates her manner, forges her signature, and assumes her name. But the real name of the deceiver is Licentiousness. Such is her effrontery that she will charge liberty to her face with imposture; and she will, with shameless front, insist that she alone is the genuine character, and that she alone is entitled to the respect, which the genuine character deserves…She receives the honors of liberty, and liberty herself is treated as a traitor and usurper.” Peterson went on to quote Wilson’s end to his speech which sums up the beliefs of the Founders - “LIBERTY, VIRTUE and RELIGION go hand in hand harmoniously, protecting, enlivening, and exalting all!”

[16] One example demonstrating the understanding of liberty in an ordered society and licentiousness are the laws against fornication and adultery which have been commonplace throughout the history of the United States and are still on the books in a number of states.