By Michael Patrick Carroll
Special Contributor

The dictionary definition of "tyrant" is a ruler who "governs arbitrarily without constitutional or other restrictions".  Jefferson gave tyranny a bad name, but tyrants need not be evil. They need be merely arbitrary. And "arbitrary" defines much jurisprudence these days. 

 Any rational student of the constitution cringes at the assertion that abortion is a constitutional right. Having been written for the common folks, not for lawyers, reading the constitution is a fairly simple undertaking, at least vis a vis rights. Is an asserted "right" immunized from the normal hurly burly of politics?

Point to the particular constitutional provisions which so provide. Especially on "pelvic issues", no provisions exist which even remotely supplant the normal workings of popular self government. Courts possess no monopoly on wisdom. At assessing the meaning of words, they may excel. But at policy? Committees of aging lawyers hardly commend themselves as bastions of moral authority.

Civics 101 provides that in a pure democracy, no one possesses any rights beyond the power of a majority to ignore. Constitutional democracy provides that even majorities may not infringe on certain rights. But, just as the constitution derives its authority from the sovereignty of the people, so, too, only the people possess the authority to recognize rights.  No matter how basic a right might seem (to some), from a constitutional – and, hence, a judicial – perspective, it does not exist unless the people say so.

 Abortion represents only the most obvious example of judicial tyranny.  Our state supreme courts – especially the embarrassing Court here in New Jersey –  are equally adept at making things up as they go along.  The Florida electoral debacle owed more to an arrogant and abusive state supreme court ignoring clear state law than to anything the feds did. 

In New Jersey, school funding, zoning, and elections themselves have been dictated by the courts, without even a hint of legal authority for their ukases.  Meekly, our elected branches defer to the commands from on high. 

Many folks support the policy determinations made by the courts.  But the essence of a tyranny is NOT that it arrives at poor results, but that it imposes those determinations on the people without their consent, and, hence, without any claim of legitimate authority.  A court which ignores the text and history of the constitution in order to arrive at what it considers to be preferable policy outcome acts tyrannically. 

If our system of government – of, by, and for the people – is to be restored, judicial pretense toward policy making authority must be eliminated. 

Courts serve a vital purpose, restraining the elected branches when they exceed the scope of the authority delegated to them by the people.  But, as The Federalist noted, having given the Courts the authority to restrain the government, we must find a way to oblige them to restrain themselves.  The alternative is just as much a tyranny as the one we fought a revolution to abolish.