Posted on 01/11/2006 12:56:36 AM PST by Dundee
A fiasco best left in the US
ONLY in America! That sentiment rings true for so much and the appointment of judges is no exception. Just witness the present state of affairs where the US Senate is considering whether to confirm President George W. Bush's nomination of Samuel Alito to the Supreme Court.
Imagine for the moment that Alito was Australian. It would work as follows. Attorney-General Philip Ruddock would call a brief press conference. He would announce Alito's appointment, highlight his impeccable resume, and then wrap things up. "Curse the slow news day," those present would say.
In response, the Labor Party and the Law Council of Australia would issue press statements, first and foremost criticising Alito for not being a woman. But then they would concede his credentials and otherwise wish him well.
There would be no television reportage, and the most extensive print coverage would appear in Sydney's La Fiamma. As quick as that, Alito's 14 minutes of fame would be over and few would talk of him again.
Back to the US, where Alito fever has swept the nation since his nomination was announced in October. Senators, journalists, academics and bloggers are dissecting every aspect of Alito's life. Websites are dedicated to the man. There was even a coast-to-coast tour last week of 18 states featuring - wait for it - Sam's old-time pals (the photos prove that this concept is best left to rock stars).
Enter the cashed-up interest groups, with their millions of dollars and award-winning lobbyists and consultants. The result is that no email account is safe from a warning that Alito is the devil incarnate. No American sitcom is immune from advertisements demanding that you telephone your local senator to tell them how much you hate Alito. And those who attend an evangelical church are undoubtedly being asked to pray for world peace, an end to poverty and Alito's confirmation.
Why the circus? The answer comes down to three simple words. Bill of rights. Whatever that document was once designed to do, today it gives Supreme Court judges the power to socially engineer America as they see fit. The judiciary, unhappy with its traditional role as the least powerful arm of government, has exercised its right to bear arms and come out firing.
That's why Americans ignore Congress and go straight to court when an issue bugs them. You name your agenda. The right to abort. The right to have gay sex. The right to burn your country's flag. The right to peddle telephone porn. Whatever you want, just turn up at the Supreme Court and see if you can't get five of the nine judges to give it to you. And don't worry if your agenda is as popular with everyday Americans as French cowardice. Once you win your case, neither you, nor the judge you manipulated, can ever be called to account.
In this context, the scrutiny of Alito is understandable. He is on the verge of assuming awesome power. It explains why if Alito is confirmed, he will be bombarded with more letters and petitions than he could ever read. He will forever be at war with the revamped IRA (Ivy-League Rights Army). And on each anniversary of Roe v Wade, the 1973 case that legalised abortion across the US, he will be swamped by pro-lifers demanding he stop the carnage.
Amazing isn't it? Despite America's claim as a thriving democracy, elite lawyers who will never face a ballot box in their life can change the nation with one knock of the gavel. Yet even more amazing is that some people (all of whom are either a lawyer or Malcolm Fraser) actively desire a bill of rights in Australia. These are the lawyers who wish their clients would quit asking them to draft wills or transfer property, and instead ask them to act as the social pioneers Michael Kirby keeps telling them they are.
Naturally, these advocates come bearing assurances that ours will be a benign bill of rights, limited in scope, carefully drafted, and respectful of the parliament. These assurances mean little, however. Do you think that the pious drafters of the US Bill of Rights in 1791 wanted to constitutionally protect the contraceptive pill? Do you think they wanted to ban nativity scenes at Christmas? Of course they didn't. But that's the thing with lawyers these days. Put a bunch of them in a room together for long enough and they will eventually decide that one plus one equals three.
So as the Alito show rolls on, let's reflect on the advantages of not having our own bill of rights. Sure it requires us to have faith in parliament (an uncomfortable proposition at times), but at least we can occasionally hold our politicians to account. The same does not apply to civil rights lawyers. No matter how careful we are in giving them a clearly drafted inch today, you can rest assured they will eventually find some legal academic explaining how that inch is really a mile. And that's when the interest groups get involved.
Only in America? Let's keep it that way.
Eddy Gisonda is writing a thesis on judge-made law at the University of Melbourne.
Agreed.
They have courts in Australia? I'm going to have to start getting out more. I think all of this dust is getting to me.
Judicial activism certainly is a fiasco, and the Aussies are wise to fight shy of it.
The Supreme Court has become a deadly danger to America. They can abolish private property. They have signed off on murder for decades. Only now is it beginning to be moderated - but allowing the court to abrogate to itself the right to interpret the constitution has nearly destroyed the US. The power to interpret the constitution should be formally claimed by Congress!
But what we would probably get is a Bill of Rights which enshrined Free Health Care, Free University Education, Gay Marriage - all sorts of things like that.
I think matters like those should be kept out of the Constitution. If a democratically elected government can get support for them - well, I can live with that, even if I don't like it - but not in the Constitution.
Ours was drafted by brilliant men operating in good faith, and doing their level best to build a country that would stand the test of time.
Name for me a single politician of any renown, on either the right or left, in America or Australia, who you would trust to be involved in drafting a new 'bill of rights'.
I didn't think so....me neither.
The LAST thing Australia needs is a Bill of Rights.
Imagine what the Left could do with that - and US!
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. (Alexander Hamilton, Federalist, no. 84, 575--81)
The problem isn't the Bill of Rights. Rather, it's lifetime terms for judges, and a very weak method of disposing of bad judges.
That's a great read, thanks for posting it. I think I'll move to Australia when Hillary becomes President.
You know it's bad when the Australians understand the problem better than American liberals. But it's not that the document gives the judges the power, it's that the judges have completely ignored what is written in the document.
That's because WE ARE A REPUBLIC, NOT A DEMOCRACY YOU MORON!
Appointment a la the Federal Reserve might be an improvement.
So did the U.S. founding fathers who intended to leave these things to the legislators, i.e., the people's representatives, but modern day judges ignore the words written in the Constitution and make up their own laws, e.g., a right to sodomy.
If one could get an honest answer out of todays Dems, they would admit that they care little or nothing for the basic concepts of the U.S. constitution. If they can circumvent it or invent some new "right" never intended by the founders, they will. Their favorite phrase for it is "a living constitution" i.e. a constitution what five liberal judges say it is...depending on the liberal zeitgeist of the moment.
Alexander Hamilton was an elitist, who didn't really care about the rights of the average citizen, so that would be his view. Instead, I'm with Jefferson on this one; a Bill of Rights was necessary to draw a line that governments couldn't cross. Without it, the U.S. would probably look similar to Europe with its disdain for individual rights. Some of European laws, especially the ones banning "hate speech" and individual religious expression, would be struck down as unconstitutional in America.
Actually, this is scary. Our constitution is only as good NOT as the drafters who wrote it, but as the people we now put in place to interpret it.
We should want weak people with limited desire for power, people who are scared to make waves, people who just want to do their job and go home -- that's the kind of judges we need.
What we get now instead are superstars, brilliant people who are ambitious, proud, and self-assured. Those types of people tend to think they know better than the rest of us, probably have contempt for politicians and the political process, and are very much in danger of being swayed to doing the "right" thing rather than the constitutional thing.
After all, they are the really smart ones, and are smart enough to know what is best for the rest of us.
Just some thoughts I had. But it is clear that the constitution isn't worth the paper it is written on if the judges take for themselves the power to re-write it to fit our "modern" times.
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