Bryan Fischer
Justice Barrett will not rewrite Constitution like Roberts and Gorsuch
By Bryan Fischer
October 13, 2020

This is a principle that John Roberts, using the umpire analogy, stressed in his confirmation proceedings. Then after he was confirmed he forgot all about it by the time he got around to writing the majority opinion on ObamaCare. In that opinion, he rewrote the law to call it a “tax,” a construction which even President Obama emphatically rejected when the law was being debated and he was asked about it on national television.

The Court issued its ObamaCare ruling on June 28, 2012 and called the individual mandate a “tax,” imaginatively opining that the law was constitutional under the taxing power the Constitution gives to Congress.

But the president himself, in an interview with ABC’s George Stephanopoulos in September of 2009, declared that in fact it was no such thing.

    STEPHANOPOULOS: I – I don't think I'm making it up. Merriam Webster's Dictionary: Tax – "a charge, usually of money, imposed by authority on persons or property for public purposes."

    OBAMA: George, the fact that you looked up Merriam's Dictionary, the definition of tax increase, indicates to me that you're stretching a little bit right now. Otherwise, you wouldn't have gone to the dictionary to check on the definition. I mean what…

    STEPHANOPOULOS: Well, no, but…

    OBAMA: …what you're saying is…

    STEPHANOPOULOS: I wanted to check for myself. But your critics say it is a tax increase.

    OBAMA: My critics say everything is a tax increase. My critics say that I'm taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we're going to have an individual mandate or not, but…

    STEPHANOPOULOS: But you reject that it's a tax increase?

    OBAMA: I absolutely reject that notion.

Imagine an umpire who has become convinced in his own mind that the four ball-three strike rule is discriminatory on its face. It gives the pitcher four mistakes and the batter only three. He decides that this is fundamentally unfair, and being committed to social justice as he is, he calls the two managers together before the game and tells them he has changed the rules. Tonight it’s going to be three balls and three strikes, he says. That umpire would rightly be out of a job before the bottom of the first inning, and would never work another game in his life. A judge who did what Roberts did should face the same fate.

The role of an umpire is to apply the rules of baseball, not tamper with them or adjust them. It is the job of the rules committee of major league baseball to review and if necessary change the rules. Certainly the rules committee should – and does – receive input from umpires, but any changes umpires might want can only be made by the rules committee. If the rules committee changes the rules, then it is the job of an umpire to apply the new rules fairly and evenhandedly whether he happens to like them or not.

Neil Gorsuch, sadly, did the same thing in the Bostock case when he rewrote the Civil Rights Act of 1964 to change the meaning of the word “sex.” When Congress passed this bill, what they meant by the word was biological sex, male and female. Gorsuch changed the definition of that word to make it completely subjective – sex is whatever you fancy it to be.

As a consequence, Catholic hospitals who refuse to surgically mutilate the human body so someone can transition from one sex to the other will be put out of business as bigots. Any school district which believes males should compete against males and females against females as a fundamental matter of fairness will be shut down for the same reason. So Gorsuch has endangered the entire health care system of the United States and endangered the future of women’s athletics.

In our system of government, it is Congress which makes the rules, the Executive branch which enforces them, and the judiciary which applies them to controversies or cases in which the Constitution gives it legitimate jurisdiction. Congress is the rules committee, judges are the umpires. End of story.

When it comes to sodomy-based marriage, for instance, it is the role of judges to apply the law, not to make it. If a state constitution has been amended by the people to protect natural marriage, as the union of one man and one woman, the Supreme Court under the 10th Amendment has no authority to change that, since the Constitution gives it no authority over the marriage policy of the individual states at all. In fact, the Constitution doesn’t mention marriage at all. It is exclusively the job of the legislative branch, not the judicial branch, to make changes in law.

Capitulating to this unconstitutional conceit, America has allowed the Court to assume ultimate authority over constitutional matters. This in turn has led politicians to indulge in politically inexcusable behavior. President George W. Bush, for instance, knew that the McCain-Feingold campaign finance reform act he signed in 2002 was unconstitutional, but instead of vetoing it, he signed it and declared that he was hoping the Court would do his work for him by throwing out the bad parts. In his own signing statement he said that there were “serious constitutional concerns” with the bill, and that he had “reservations about the constitutionality of the broad ban on issue advertising.”

In other words, he had come to his own conclusion that the bill was unconstitutional in fundamental respects, but rather than fulfill his constitutional obligation to veto this misbegotten piece of legislation, President Bush washed his hands of it and kicked the can down the alley to the Supreme Court. It turns out his confidence was entirely misplaced. The Court upheld most of the bill, and he became responsible for having signed a bill that he knew for a fact was contrary to the Constitution.

Thanks to Chief Justice Marshall and his Supreme Court minions, the Constitution has become the very “thing of wax” Jefferson warned us about. William Marbury was the first victim of judicial tyranny, but he wouldn’t be the last.

In her opening statement in her confirmation hearing before the Senate Judiciary Committee, Ms. Barrett said, “A judge must apply the law as written, not as the judge wishes it were ... The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try.”

I believe that Justice Amy Coney Barrett, if she means what she says, will help America reclaim the Founders’ Constitution and help us toss the one that has been mangled by activist courts into the ashbin of history. May it be.

The author may be contacted at

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Host of “Focal Point” on American Family Radio, 1:05 pm CT, M-F

© Bryan Fischer


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