Disorder in the courts

WORLD ^ | 3/26/05 | Gene Edward Veith

[rhema]

The framers of the American Constitution, conscious of human sinfulness, devised a structure of checks and balances to prevent any one branch of government from exercising too much power. But while the founders limited the executive and the legislature, they stopped short of sufficiently checking and balancing the judiciary.

And why should they have? The founders assumed that the courts would be checked and balanced by the law and, ultimately, the Constitution. And, where courts must decide a question not addressed by a statute, they follow precedent.

The founders never dreamed there would come a time when an American court would presume to make up and then enforce rights never mentioned in the Constitution, such as the right to an abortion.

They could never have imagined that a court would ignore precedent to the extent of throwing out thousands of years of family law to open up marriage to people of the same sex.

They could never have conceived of postmodernist legal theory, which recognizes no fixed, objective meaning in the law; which believes interpretation of the law is an arbitrary construction; which believes statutes and the Constitution itself are ever-evolving, relativistic paradigms that can be used to impose the judge's personal opinion.

Two recent cases demonstrate how elements of our court system are operating increasingly outside the law. The Florida courts ruled that Terri Schiavo's husband had the right to order her feeding tube removed so that she will die. Perhaps there is a law that allows such an action, however unjust. So the Florida legislature passed a bill, which Governor Jeb Bush signed into law, that would save Ms. Schiavo's life. But then the Florida Supreme Court voided that law, charging that the legislature was just trying to get around the original court ruling.

But what is wrong with that? If the people of Florida have a law they do not agree with, do they not have a right to change it through the legislative process? Do the people of Florida have no remedy if they do not believe euthanasia should be legal in their state? Why have a legislature if courts are going to ignore the laws they pass, allowing only the laws the court approves of, and, in effect, ruling by fiat?

In the Schiavo case, the courts are insisting that an innocent, unconvicted person suffer the death penalty. Now, in Roper v. Simmons, the U.S. Supreme Court has ruled that a guilty, convicted person may not suffer the death penalty.

It is possible to agree with the substance of the ruling—that no one may be executed who committed the crime when under the age of 17—while worrying about the court's reasoning. In striking down the laws of 20 states that permit the execution of minors, the court cited the laws of other countries. It said, with no evidence, that there is a "consensus" in this country that executing minors is wrong. It said, with no evidence, that minors cannot be fully responsible for their behavior. The court even reversed its own ruling of only 15 years ago.

If there is a consensus against executing minors, the procedure for a self-governing people would be to urge state legislators to pass a law stopping the practice. But instead we have judges who remove the people's rights to make laws through their elected representatives and instead take on the legislative role themselves.

Liberals have an increasingly difficult time getting elected. So they pursue their agendas instead through the courts. And they keep getting their way. This is because judges tend to come from the ranks of the cultural elite—from academia, the upper class, trial lawyers—and tend to be liberal.

Civilization requires the rule of law. Executives, legislators, and citizens must obey the law, including court rulings. But the courts too must obey the law. Many judges do, interpreting and applying the law that is outside themselves. But with our complex system of legal review and multiple appeals, cases often find their way eventually to a lawless judge.

Government by judges is no longer democracy (rule by the people). It is oligarchy (rule by a few). And when judges not only rule but do so under no restraints, it is tyranny. —•

[Route101]

Well spoken....Amen brother....

[An Old Marine]

It always stikes me as ironic that a nation that was started as an escape from kings that were above the law, who created law out of their own whim, and applied law selectively according to the birth of their subjects would willingly have created a new class of unanswerable overlaords to determine the structure of our society.

The welfare of Americans future may well turn on our ability to rein in these unelected class of self imposed overlords.

[yatros from flatwater]

Here's a symposium from 1996 which predicted the events we are now witnessing, to a flurry of criticism, stating that judicial tyranny would bring the end of democracy. Better said, it has brought the death throes of the Republic. The vector of the terminal disease was Chief Justice Marshall.

[DJ Taylor]

"I could go with ... Dutch regulations on drugs..."

Could you really?

[Noumenon]

Radical ctivist judges - out of touch, out of tune, but not out of reach, as recent events have shown.

[Noachian]

The founders never dreamed there would come a time when an American court would presume to make up and then enforce rights never mentioned in the Constitution,...

Of course they did. Read your history and you'll find some of the men who founded this Republic didn't want a Supreme Court at all.

Most of the Founding Fathers knew all too well that the power of any unelected Judiciary was the power to corrupt, and so made the Judiciary the least powerful branch of government.

What they never counted on was a weak Congress all to willing to cede its authority over the Judiciary, and a nation of people all to willing to let them.

Those Founding Fathers gave us the tools to handle abusive judges. They can be impeached for one thing, and their appointments can be limit to a few years by a Constitutional Amendment for another.

It's not that we don't have the means to change the Judiciary. The question is do we have the stomach?

[Restorer]

The most peculiar aspect of this issue is that the enormous power of judges in our society comes from the immense respect for the law and the Constitution accumulated over the last two centuries.

The judges are doing their best to destroy this respect, in essence sawing off the branch they themselves are sitting on.

[yatros from flatwater]

The Legislatures have the responsibility to impeach and remove judges who have engaged in gross malfeasance. If not for violation of the Constitution that all have vowed to uphold, protect and defend, then for what?. If not now, when?

[Noumenon]

I predict that we'll see an increase in 'removal from the bench by other means'.

[meadsjn]

Columbia and other advanced societies have expedited judicial retirements by other means for at least the past twenty or thirty years. Americans are just slow to embrace the ideals of foreign cultures.