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POV: Man’s Rights; The Nature of Government
by Ayn Rand | 1963
The Immigration Debate
by The Editors | April 17, 2017
Charlie Hebdo Two Years Later: Will America Continue to Protect Free Speech?
by Steve Simpson | January 07, 2017
Free Speech Is a Right, Not a Political Weapon
by Steve Simpson | December 06, 2016
One Small Step for Dictatorship: The Significance of Donald Trump’s Election
by Onkar Ghate | November 17, 2016
Overturning Citizens United Would Be a Disaster for Free Speech
by Steve Simpson | September 06, 2016
New Book: Defending Free Speech
by The Editors | July 26, 2016
Defending Free Speech
by Steve Simpson | July 02, 2016
How U.S. Attorneys General Are Like Chinese Censors
by Steve Simpson | July 01, 2016
Standing up for Free Speech
by The Editors | June 17, 2016
Is the First Amendment Enough?
by Steve Simpson | March 22, 2016
Free Speech Under Siege
by Steve Simpson | March 25, 2015
Freedom of Speech or Tyranny of Silence?
by The Editors | January 21, 2015
Free Speech and the Battle for Western Culture
by Yaron Brook | January 21, 2015
Freedom of Speech: We Will Not Cower
by Onkar Ghate | January 07, 2015
Gutting the First Amendment
by Steve Simpson | July 17, 2014
The Myth about Ayn Rand and Social Security
by Onkar Ghate | June 19, 2014
The Campaign Finance Monster That Refuses to Die
by Steve Simpson | June 11, 2014
The “End the Debt Draft” Campaign
by Don Watkins | March 18, 2014
End the debt draft
by Don Watkins | March 13, 2014
Abortion Rights Are Pro-life
by Leonard Peikoff | January 23, 2013
A Liberal Ayn Rand?
by Onkar Ghate | November 02, 2012
Ryan, Rand and Rights
by Don Watkins | August 17, 2012
Repairing Lochner’s Reputation: An Adventure In Historical Revisionism
by Tom Bowden | Fall 2011
Why Should Business Leaders Care about Intellectual Property? — Ayn Rand’s Radical Argument
by Adam Mossoff | November 30, 2010
Elena Kagan: Could She Defend the Constitution’s Purpose?
by Tom Bowden | July 20, 2010
Capitalism: Who Needs It — Ayn Rand and the American System
by Yaron Brook | June 09, 2010
Were the Founding Fathers Media Socialists?
by Don Watkins | March 01, 2010
Justice Holmes and the Empty Constitution
by Tom Bowden | Summer 2009
Nationalization Is Theft
by Tom Bowden | November 07, 2008
Supreme Disappointments
by Tom Bowden | November 03, 2008
Deep-Six the Law of the Sea
by Tom Bowden | November 20, 2007
After Ten Years, States Still Resist Assisted Suicide
by Tom Bowden | November 02, 2007
No Right to “Free” Health Care
by Onkar Ghate | June 11, 2007
The Rise and Fall of Property Rights in America
by Adam Mossoff | May 16, 2007
Free Speech and the Danish Cartoons, a Panel Discussion
by Yaron Brook | April 11, 2006
The Fear to Speak Comes to America’s Shores
by Onkar Ghate | April 04, 2006
The Twilight of Freedom of Speech
by Onkar Ghate | February 21, 2006
The Cartoon Jihad: Free Speech in the Balance
by Christian Beenfeldt | February 10, 2006
The Faith-Based Attack on Rational Government
by Tom Bowden | June 27, 2005
Supreme Court Should Uphold Rights, Not Majority Sentiment in Ten Commandments Cases
by Tom Bowden | February 23, 2005
Campaign Finance Reform Attacks Victims of Corruption
by Onkar Ghate | December 26, 2003
Thought Control
by Onkar Ghate | April 22, 2003
A Supreme Court Overview
by Tom Bowden | January 01, 2000
Blacklists Are Not Censorship
by Tom Bowden | March 23, 1999
Health Care Is Not a Right
by Leonard Peikoff | December 11, 1993
The Age of Mediocrity
by Ayn Rand | April 26, 1981
Censorship: Local and Express
by Ayn Rand | October 21, 1973
A Nation’s Unity
by Ayn Rand | October 22, 1972
Of Living Death
by Ayn Rand | December 08, 1968
The Wreckage of the Consensus
by Ayn Rand | April 16, 1967
Racism
by Ayn Rand | September 1963

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Supreme Court Should Uphold Rights, Not Majority Sentiment in Ten Commandments Cases

by Tom Bowden | February 23, 2005

As the Supreme Court prepares to hear argument in the Ten Commandments cases, conservatives can be heard voicing their familiar complaints against “judicial activism,” the supposed tendency of judges to override majority rule by writing their own subjective beliefs into law.

One of the cases arose in Kentucky, where framed copies of the Commandments hang in a courthouse hallway, and the other in Texas, where a stone monument six-feet high, carved with the Commandments’ text, adorns a walkway linking the state’s capitol and highest court. In both cases, plaintiffs contend that the First Amendment’s ban on the establishment of religion forbids such displays on government property.

If the Supreme Court were to order the displays removed, would it be overriding the will of the majority? Most certainly. Opinion polls show that 70 percent of Americans approve of displaying the Ten Commandments on public property.

Is it therefore true that the Supreme Court would be improperly writing its subjective beliefs into law? Not at all. The Court would merely be doing its constitutional job.

This nation was founded on the principle that government exists solely to protect individual rights to life, liberty, property, and the pursuit of happiness. The Constitution conforms itself to this principle when it places individual rights off-limits, beyond the reach of even the most lopsided democratic vote.

This overriding purpose is reflected in the structure of American government, whose three distinct branches are subject to “checks and balances” that permit and encourage each branch to restrain the others’ powers. To offset the ever-present temptation in all three branches to curry favor with majorities by infringing upon individual rights, courts are endowed with a counterbalancing power to declare such infringements unconstitutional.

This power is known as judicial review.

Judicial review, properly conceived, is merely one method among many by which judges resolve legal conflicts. In the courtroom, for example, judges resolve conflicts between witnesses: Did Smith run the red light, or not? They also resolve conflicts between laws: Was Smith’s violation of the red-light law justified because he was obeying another law giving right-of-way to an ambulance?

Ultimately, judges must also resolve conflicts between the Constitution and the actions of Congress, the President, or the states — especially when those actions purportedly violate individual rights. Constitutional rights furnish an objective standard by which judges can evaluate governmental actions and, when necessary, halt them.

In case after case, the Supreme Court has courageously exercised judicial review. Faced with mandatory prayer sessions in public classrooms, the Court responded with Engel v. Vitale in 1962, holding that such prayers violate the First Amendment. Faced with state laws forbidding abortions, the Court responded with Roe v. Wade in 1973, holding that such bans violate a woman’s right to privacy. And faced with state laws imprisoning homosexuals for pursuing sexual pleasure, the Court responded with Lawrence v. Texas in 2003, holding that such laws violate an individual’s right to liberty.

Conservatives decry such decisions because no rights to prayer-free public education, or abortion, or homosexuality, are expressly listed in the Constitution. But the Constitution cannot be interpreted biblically, as an exhaustive catalog of rules revealed by a superior authority, like a secular Book of Leviticus.

Instead, the Constitution must be interpreted objectively. Although the document contains some simple rules (such as the Presidential minimum age of 35) presenting no interpretive challenge, it also contains carefully formulated principles requiring future generations to identify particular applications that were unknown or unknowable in the 1780s. For example, First Amendment “freedom of the press” protects not only newspapers with printing presses but also television, the Internet, and other media not yet invented. Similarly, the constitutional principle of individual rights embraces blacks, women, and others whose rights as individuals the Founders did not fully understand.

For these reasons, conservatives’ demands for so-called “judicial restraint” — voluntary refusal by judges to exercise their review powers — must be rejected. Because courts provide a last line of defense against the tyranny of the majority, any such judicial self-emasculation would pose a deadly threat to our liberties. Just as Congress would be wrong to renounce its lawmaking power in the name of “legislative restraint,” so the judiciary would be wrong to surrender its precious review power in the name of “judicial restraint.”

If the Supreme Court finds that state-sponsored displays of the Ten Commandments violate the First Amendment’s guarantee of freedom from the establishment of religion, the Court should unapologetically exercise its power of judicial review and order their immediate removal.

About The Author

Tom Bowden

Analyst and Outreach Liaison, Ayn Rand Institute