Posted on 03/26/2005 5:06:00 AM PST by billorites
UNQUESTIONABLY, Alexander Hamilton was the most prescient of the Founding Fathers. While Adams mistrusted banks, and Jefferson and Madison conceptualized America as a nation of yeoman farmers, Hamilton embraced finance and industry. But Hamilton got it completely wrong when he predicted in Federalist No. 78 that the judiciary would be the “least dangerous” branch of government. With every new decision it issues, the U.S. Supreme Court looks less and less like a court of law and more and more like a supreme legislature. Its recent decision declaring the death penalty for minors unconstitutional — like its decisions on abortion, race, religion, sex and speech — was based not on the constitution or precedent or even historical or contemporary practice, but on the personal views of a majority of the justices. Which makes us a nation not of laws, but of seven men and two women. And many state courts are just as bad as their federal counterparts. Not content with having appointed themselves as their states’ supreme school boards, they are now undertaking the mission of redefining marriage. Hardly what Hamilton and the other Founders had in mind. Writing in Federalist No. 81, Hamilton claimed that Congress’ power of impeachment would prevent the federal judiciary from overstepping its bounds: “There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.” Nowadays, howeer, there is little possibility that impeachment — or its first cousin in some state constitutions, a bill of address — will be used to remove judges who overstep their constitutional roles. This is due in part to the popular misconception that removing a judge on account of his decisions, even decisions plainly at odds with the constitution, would be a threat to “judicial independence.” That this view is so commonly accepted shows how constitutionally ignorant we have become since Hamilton’s time. The reason our federal and state constitutions made the judiciary independent from the legislative and executive branches was to preserve the constitution. This independence was intended to allow courts to serve as an effective check on the other branches when they exceeded their constitutional limits. It is nonsensical to use judicial independence as a reason for not removing judges who rewrite the constitution, because that permits the very result that judicial independence was intended to prevent. The Founders also failed to foresee that today’s politicians would care more about advancing their political agendas than upholding the constitution. The Democrat party is particularly to blame for the present state of affairs in the federal courts. Unable to win control of either Congress or the presidency in 2004, Democrats in Washington are reduced to running interference for activist judges. Hence, jurists such as Supreme Court Justices Antonin Scalia and Clarence Thomas, who believe the Constitution has a fixed and ascertainable meaning which should be applied to present circumstances, are branded extremists. While jurists who believe that the meaning of the Constitution evolves to reflect the policy positions of moveon.org are lauded as moderates. Here in New Hampshire, both parties share the blame for failing to check an overreaching judiciary. Many, if not a majority of, Republicans like the outcome of the Claremont decisions — which drastically diminished local control over education in favor of control by state government — every bit as much as the Democrats. Hence, the Legislature’s repeated refusal to even let the voters consider a constitutional amendment. Various commentators, such as rejected Supreme Court nominee Robert Bork, have suggested amending the Constitution to allow the representative branches some degree of review over court decisions. But amending the federal Constitution requires a super-majority of Congress and the states, which the success of the Democrat filibusters of President Bush’s federal appeals court nominees shows is impractical. The durability of Claremont and other state court education funding decisions shows this approach is also impractical at the state level. It is clear that the only solution to a runaway judiciary is the principle declared in the Declaration of Independence that whenever any form of government becomes destructive of the ends for which government is intended, “it is the Right of the People to alter or to abolish it, and to institute new Government.” What is less clear is how many of us believe in this principle and are willing to act on it. Ed Mosca is a Manchester attorney and former chairman of the city Republican Party.
When society starts deciding WHO can be killed and who can not. Watch out, they will eventually get around to you.
bump
I'd love to start seeing some judges get kicked out.
Main criteria for the boot:
- inventing law
- directly defying law (as has been the case with Schiavo)
-- Joe
Thank you for posting this.
At some point we will be forced to take action against our Black Robed Emperors.
Hamilton didn't anticipate either a majority in congress without the 'nads to act on something like this, or a minority in congress that would advocate it.
Just like they never anticipated a voting public without the presence of mind and sense of responsibility to cast informed votes on every election. When you have half of the electorate sitting out elections, and the other half largely voting themselves benefits, you have a dying country.
Its a good thing that Hamilton is long since dead. Were he alive, his hair would fall out from watching how wrong he was on this particular quote. There is no impeachment, there are no bills of address. There is only judicial fiat. If he were alive today he would be branded a right wing extremist and summarily dismissed.
They need to be stopped ASAP! I have written my reps, but I expect that is sort of like spitting into the wind. Gutless wonders that they are.
Good article. If anything good comes out of the Schiavo case, I hope it is the reining in of the judiciary so nothing like this happens again. However, like the author, I'm not optimistic.
BTW, I read in the Miami Herald that the Pinellas police told DCF they would physically prevent the team from entering unless DCF had the permission of Judge Greer. That's why Bush called them off - it's obvious that they were perfectly willing to start shooting (in fact, somebody at the hospice said there are sharpshooters posted on a nearby apartment building). So judges also control the police powers of the state. Truly, truly frightening.
Yes, it is a good example of how far we have stryed from the Constitution. I do blame the go along to get along members of the 80's and 90's Congress. They gave their proforma speeches about the excesses of the Dums and went off to play golf or tennis. We are now at the mercy of a vicious and crimianl judiciary. I can't wait till they start passing laws that we can not elect lower Judges to keep these fascist in office.
I say _get rid_ of the filibuster in the Senate. Not only for judicial nominations - for EVERYTHING. Just change the rules and let the chips fall where they may.
I also wonder that the time hasn't come for the _election_ of judges at the federal level. If they're going to ACT like legislators and make law, then they should stand for election before the populace the same way that legislators must.
And of course, ALL judicial terms at ALL levels should be term-limited.
Just my thoughts. Yours may be different.
- John
To correct the situation in the courts, we first have to correct the problem in the congress. We already know our elected representatives haven't the collective will or backbone to do what is necessary. Every day that passes without correcting the minority control of judicial nominees is a day putting us further in the control of the whimsical and leftist judiciary.
We wouldn't accept such an attack on our freedoms from an outside force, but here we sit watching the will of the people being ignored on a daily basis.
Reform Congress, first. The first step is to run every last incumbent out of office, and back home. Republican or Democrat, there isn't a dime's worth of difference where the rubber meets the road; our interests come last.
Note that the electorate that Hamilton expected is a bit different than our current electorate. That is the real cause of the problems - weak thinking ignorant semi immoral sometimes even anti-american electorate.
Divas Husband
"What is less clear is how many of us believe in this principle and are willing to act on it."
So, how do I help correct this situation?
When forming opinions it is helpful to have your facts straight. The Democrats controlled both houses of Congress from the sixties until 1994 when the Republicans under Newt Gingrich were able to gain control of the House by a small majority. Even now with small Republican majorities in both houses the rabid minority of Democrats is able to manipulate and violate the rules to maintain effective control if not actual control.
I am not pleased either that we have evolved into what we are today but to say a pox on both your houses is to not consider all the facts.
Under the circumstances, it is amazing what Reagan was able to accomplish and what Bush is accomplishing today.
Let's just preserve the constitution, and let it go at that.
I'll also bet that Jeb is too much of a p***y to exact a price from Pinellas County for making him look like a fool. If I were Governor and I got egg on my face from a pipsqueak judge in a third-tier county, they would get a nice toxic waste dump and would have to beg on bended knee for ANY discretionary state money.
But the Bushes, for whatever reason, never seem willing to make their political enemies pay the price. What would LBJ, Huey Long, or for that matter Clinton, have done?
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