focus on the tautology

First, let me candidly admit what a valuable resource Focus on the Family and Dr. James Dobson has been to my family. I remember well the films shown at my Church back when Dr. Dobson was relatively unknown and I was a young adult with a great need for Dr. Dobson’s wisdom. Since then, I have purchased and read a number of Dr. Dobson’s books, and my Son’s video library has a generous selection of the wonderful Adventures in Odyssey videos that Focus on the Family produces. I am grateful and will continue to be grateful for the professional wisdom Dr. Dobson has shared.

This gratitude, however, does not extend to the ever-increasing political activities of Dr. Dobson and the Focus on the Family organizations.

In the Focus on the Family Action April newsletter, Dr. Dobson wrote an article entitled Life, Death and Judicial Tyranny extolling the perils of the judiciary and calling the faithful to action with respect to the administration’s effort to get its judicial nominees confirmed in the senate. In his view, the Terri Schiavo imbroglio was solid evidence of an Imperial Court imposing its will on a Moral Majority and the way to set things right is by getting more right minded jurists to the bench.

It seems to me that the greater imperialistic risk of that episode came from a Federal Government intervening in a matter that was well adjudicated in Florida Courts. And while I am concerned with the make-up of the jurists on the Federal bench, I have trouble imagining how Dobson’s purposefully expanding upon the politicization of judicial nomination process can be calculated to improve the jurisprudential temperament of the courts. But the most disturbing thing Dobson wrote does not clearly tie to a specific public issue, but rather involves an extraordinarily misleading and erroneous “analysis” of the landmark case of Marbury v. Madison .

In Dobson’s view, Marbury v. Madison is the root of all evil. Indeed, Dobson’s pièce de résistance in that newsletter was the argument that the founders never intended judicial review as a Constitutional power. Disingenuously he effusively quoted Thomas Jefferson’s remarks that possession by the courts of such a power would lead to oligarchy. His clear implication that this was the position of all the founders is clearly not so.

As you can imagine, there has been much ink spilt in the last two centuries on this very point, however absent from Dobson’s argument is even the scarcest hint of an objective inquiry into the arguments for and against judicial review. But then, I would not expect such a thoughtful analysis from someone who is so blinded by a political agenda that they omit from their diatribe the essential fact that when Jefferson was writing in criticism of judicial review, he was opining from the losing end of a political struggle.

And perhaps it might be worth noting that the man that opposed the Constitution with greater vigor than any of the other anti-ratification voices might not necessarily be the best citation on a point of Constitutional law in the first place. It seems worth at least a mention that in Federalist Paper number 78, Alexander Hamilton, one of the staunchest advocates of the new Federal Constitution, put forth a vigorous argument in favor of judicial review as being essential for the protection of the individual’s rights. Whatever happened in Marbury it is clear that Justice Marshall was not simply creating the doctrine of judicial review out of whole cloth as Dobson is suggesting.

Sadly, in the political realm, omitting inconvenient facts and demagoging on those found more useful has become the norm.

But in the process of demagoging this issue, Dobson has seldom been more out of his element. That he self-righteously calls on the name of Jefferson, a somewhat dubious source for Original Meanings, evidences a radical contempt for his listeners ability, or more likely willingness, to investigate the evidence for themselves.

If you have sympathy for Dobson’s view, I would urge a personal examination. Judicial review at one time troubled me too because on its face it smacks of judicial over-reaching. I am a big believer in courts deciding the cases before them and going no further than necessary to discharge their duty. But after some study I came to the understanding that judicial review is in fact a logical extension of a court’s inherent authority to apply law to facts. A logical extension of the founder’s desires to put the Constitution and the Courts above the political process in an endeavor to preserve the blessings of liberty for posterity.

Federalist No. 78 is actually quite compelling on this point.

Digging into the matter, you will discover that no matter where you come out on judicial review, there are a lot of tough questions you have to answer to get a clear understanding of how this should in fact work. Who would you choose to be the final arbiter of Constitutionality? And what sources are the arbiter to consider in determining Constitutionality? I for one do not consider it wise to submit our human rights to the Legislature or Executive for arbitration but those of you who believe in the virtue of the majority may feel otherwise. And anyone who tells you that constitutional interpretation is as simple as applying “strict construction” is either blowing political smoke or has not seriously studied the issue.

It is clear that Dobson does not expect to be questioned by his followers with any intellectual rigor.

As you might imagine, I have only just touched on the most abrasive of Dobson’s misleading arguments. The genuinely disturbing thing is that so few of my brothers and sisters in Christ will question the word of Dobson and I have no doubt that the bumper-sticker phrase “Judicial Imperialism” will be on the lips of many evangelicals for many weeks to come.

Fortunately for Americans, we still cling to the tatters of a body of law that knows no equal in history. Time will tell whether this audacious power grab by the majoritarian wolves, cloaked as Christian sheep, will run its course before the last vestiges of Liberty are wrested from We the People. Sadly I fear that in an age when politicians like Dobson get so much traction, perhaps we do deserve what we are getting.

Forgive them Father for they know not what they do.