Judicial Usurpation: Then and Now

Dr. David Tubbs publishes with Dr. Robert George in National Review

NEW YORK, November 19th, 2012—In a new article published in National Review, Dr. David L. Tubbs and Dr. Robert P. George argue that the Supreme Court of the United States of America should stay out of defining marriage. Instead, the authors argue that the Court should “respect the constitutional allocation of powers and principles of American federalism and allow each state legislature to make policy in this area.”

In “Judicial Usurpation: Then and Now” Tubbs and George offer a history and a refutation of the judicial foray into “constitutional metaphysics.” The authors point to Eisenstadt v. Baird as one of the first instances of such speculation.

"In Eisenstadt, the central elements of Griswold were ignored or distorted beyond recognition. In his majority opinion, Justice William Brennan cited Griswold but now insisted that the right to use contraceptives belonged to individuals, not spouses. Here is the whole argument: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Presto! An alleged constitutional right grounded (however implausibly) in a defense of marriage is transformed into a right of unmarried persons to have their lifestyle choices facilitated by the legal availability of contraceptives."

Even leaving matters of constitutional principle out of the discussion, the authors note, “the Court’s record as a policymaker is dismal.” Contrary to the expected drop in the incidence of abortion after Roe v. Wade, abortion has become a widely used form of birth control.

Tubbs and George offer two major take-aways. First, “a case such as Eisenstadt illuminates the true meaning of judicial usurpation,” and justices ought to avoid repeating similar mistakes. Second, “the Court should recognize the risks of promulgating a constitutional right to ‘same-sex marriage.’”

You can read the full article on NationalReview.com by clicking here.

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