Posted on 09/01/2003 1:13:01 PM PDT by Matchett-PI
It is not the court's job to do justice. It is the courts job to apply law.
But you may ask what if the law is a immoral? My answer is that the courts have no right to strike it down.
Once you allow them to do that you've given judges absolute power to decide what is right and wrong, and when that happens you and I become utterly without defense.
Trying to unscramble the rationale of court decisions now-a-days is an exercise in frustration. How does one make sense of all the legalese and the opinions of the army of pundits that parade across our screen on the evening news?
In the absence of a well developed understanding of how the judicial process works we are, more often then not, inclined to follow our moral instincts in judging the ruling of the courts.
We try to think of what reflects our own moral code, our own understanding of right and wrong. Then we try to address the court's decision on that basis.
But this sets us up for making a serious error. That error is arguing morally rather than legally on the issues before the Court.
Let me give you an example. A few weeks ago the Supreme Court handed down a decision on the Pennsylvania case, Casey vs. Planned Parenthood . Two senatorial candidates from this state were given an opportunity on local radio to comment on the High Court's ruling, first Democrat Barbara Boxer and then Republican Bruce Herschenson .
After Boxer had made her comments and departed, Herschenson made an interesting observation. He observed that his opponent had not made one comment about the Constitution.
Instead she commented on the ideological issues the Court addressed.
This was a profound error, he noted, because a Supreme Court judgment has one purpose and one purpose only, to adjudicate the Constitution, to render a judgment, to resolve a disputation.
How do they do that? Not by deciding what is good, or what is right or what is fair. In other words, to render a judgment, to resolve a disputation between the law in the ruling of the lower court, on the one hand, and on the other, the law in the Constitution of the United States.
It is their job to determine whether the law, in this case the Constitution, has been violated. That's all. That's it. End of issue.
As Herschenson pointed out, it doesn't matter really what any individual justice thinks about the issue, in this case abortion. It only matters what the Constitution says. That's what the Supreme Court is all about. That's what any court really is all about. It adjudicates the law as written.
When Randall Terry said that these judges in the Casey ruling let "us" down--the Christians, the conservatives, the pro-life contingent, whoever--he implied there was an ideology they were meant to represent, a loyalty that they had apparently abandoned.
But this kind of thinking is very dangerous. Even though I agree with Randall Terry's general position on the morality of abortion, I disagree with the way he responded to the court.
I'm looking at an underlying current here, actually not underlying anymore, it's an overlying current that is very dangerous.
This dangerous pattern is something that both liberals and conservatives are victimized by. To put it simply, when we address issues of the Court, if we start arguing with the Court's decision on a moral basis as opposed to a legal basis, we fall into the same trap.
Let me illustrate this for a minute because I realize some who are listening are going to think that the kind of thing that I'm saying now is completely contrary and opposite to the kind of thing that I've said for the last two and a half years on the air.
Certainly, we do reason moralisticly in the marketplace.
The question really that I'm addressing is whether it's appropriate to reason that way in the courts. Or does the court have a particular job and is that job limited and is it limited for a purpose?
I would argue they have a particular job. It is a very limited job. It is limited for a very good purpose and that limitation protects you and I from tyranny.
Judge Bork recalls the story of two of the greatest figures in our law, Justice Holmes and Judge Learned Hand.
As they were departing after having shared lunch together Hand, in a moment of effervescence and enthusiasm, raised his voice after the retreating Holmes in a final salutation, "Do justice, sir, do justice."
Holmes stopped the carriage and corrected him. "That is not my job," he said. "It is my job to apply the law."[1]
Let that sink in a moment. It is not the court's job to do justice. It is the courts job to apply law.
But you may ask what if the law is a immoral?
My answer is that the *courts* have no right to strike it down.
Once you allow them to do that you've given judges absolute power to decide what is right and wrong, and when that happens you and I become utterly without defense.
Here's what I mean.
There is a movie you all should see for a number of reasons, not the least of which has to do with the comments that are made in the film about this issue. But you'll have to go to the "Classics" section of the video store because precious little work has been produced in the past three decades that approaches the moral and intellectual magnitude of this film.
The movie is called "A Man for All Seasons." Paul Scofield plays the lead as Sir Thomas Moore, Chancellor of England under Henry the VIII who was executed rather than surrender the leadership of the church to the King.
He was a man of tremendous mental acumen, a fine legal mind, a great Christian, a martyr.
This issue of the law that we're discussing came up in the film.
When Roper, the somewhat self-righteous suitor of Moore's daughter, asked Moore if he'd even give the devil the benefit of law, he said, "Yes. What would you do, cut a great road through the law to get after the devil."
"Yes," Roper replied, "I'd cut down every law in England to do that."
Sir Thomas Moore responded, "Oh? And when the last law was down and the devil turned round on you where would you hide, Roper, the laws all being flat?
This country is planted thick with laws from coast to coast--man's laws, not God's--and if you cut them down...do you really think you could stand upright in the winds that would blow then?
Yes, I give the benefit of law, for my own safety's sake."
You see, the danger today is that this principle has largely been abandoned.
The law, the Constitution, is less and less something particular that can offer an unchanging standard.
Instead revisionist judges see the Constitution as a "living document," changing from generation to generation, and therefore they can ignore the original intent of the framers.
In one sense, as Moore put it, the laws are going flat and the winds are beginning to blow.
But, I contend, it is only the original intent that can protect us from judicial tyranny.
Now let's talk just a minute about balance of power because this is really what's at issue here. This is the protective element that keeps us from being tyrannized by any segment of the government.
It is the elected official's job to pass just laws. It's their job because they have accountability to the electorate.
Judges, on the other hand, are only accountable to the law.
They are not accountable to the electorate.
They are not to be swayed by public opinion.
For balance to work, they must be accountable to the law.
That's the problem with judges legislating from the bench.
There are no controls. Instead of sticking to the Constitution, today's revisionist judges are adjudicating on that which is not law.
When they do that, they have both feet planted, as Dr. Francis Schaeffer said, in midair. This does not produce any kind of civil stability.
This introduces the whole problem with the so-called "litmus test." The litmus test refers to a particular ideological profile a justice must have before he can be approved.
The expectation is that if a judge has a particular ideology--and therefore passes the test--then his decisions will reflect that ideology.
This is a profound error. The litmus test qualifies potential judges in an inappropriate way.
I have to confess, when I first heard that President Bush claimed he never discussed the abortion issue with any of his nominees I found it hard to believe.
But now I understand why that wasn't necessary.
Bush was concerned with judicial philosophy--as he should have been--and not with ideology.
The teaching that a woman has a fundamental right to an abortion is not in the Constitution; it was the creation of a liberal court legislating personal ideology from the bench.
Seating pro-life judges in the court only compounds the problem of bringing ideological battles into the courtroom.
There is another way to resolve this issue.
Bush knew that a judge with a conservative view of law --not necessarily a conservative view of the issues--would solve the problem.
If you let the Constitution be what it was meant to be and let the Court function the way it was meant to function, Roe would be overturned because judges that are not revisionists but are committed to original intent will not find a right to abortion in the Constitution because it's just not there.
Strict constructionists will not read into the Constitution something that's not there. This frightens liberals.
This is precisely why conservatives don't need a litmus test of their judges and liberals demand one.
They demand one because they must get an elitist court to accomplish for them what they have not been able to achieve democratically.
And that is tyrannous.
It is not the judge's job to do good.
Good is an ideological commodity, more often than not, something that means different things to different people.
In a relativistic society plagued by competing moral ideologies it would be the kiss of death to give judges the liberty to adjudicate based on their own conscience.
The reason is there is no protection from elitism.
Legislation, by its very design, is protected from elitism.
Legislators are elected officials. They have accountability to the electorate.
Not so the courts. They have become the breeding ground for elitist doctrines to be forced upon the common man. That is frightening.
This is why I am very uncomfortable with letters addressed to the court that argue on a moral basis.
What is there that keeps judges from imposing moral and political agendas of their own that are not found in the Constitution just because they got a lot of letters from people saying they should do so?
What protects us from moral relativism in the Court?
The Constitution is supposed to protect us. The laws are supposed to protect us. Laws that are passed by a Congress which has accountability.
The Congress is the place for agendas; not the Court.
Judges should not be concerned with morality or with justice in the broader sense.
The only justice they're to be concerned with is justice with the law at hand.
Goodness, justice and morality in the larger sense are problems of the legislature, not the Court, because we can get at the legislature.
We can't get at the Court. We dare not give them that power.
Our appeal to the Court should not be a moral one but a legal one.
If you want to write to the Court, write this: Do the law. Stick with the law. Don't legislate from the bench. Don't do what you think is good and right and true. You do the law. That's your job.
The popular vote protects us from tyranny in the legislative and executive branches.
But how do we keep the judicial branch from tyrannizing us?
The law.
If there is no protection in the law itself written by men and women who are elected by the people and sensitive to the will of the people, if the law is so much silly putty bent and molded by the prevailing ideology--liberal or conservative--a "living document" that takes on a different life for each judge that uses it, then there is nothing to keep judges from being tyrants.
And for those of you who think the word tyrant is a bit much, consider this. With one stroke of the pen in 1856, Judge Taney relegated Dred Scott and the rest of his race to the status of chattel property, without rights and without protection from the law.
With one stroke of the pen judges 19 years ago swept 27 million unborn children to date into the grave, children without rights and without protection under the law.
And with the same stroke of the pen the severely handicapped, the inconvenient, the helpless ones are one by one beginning to fall into that same abyss.
At least that's the way I see it.
[1] Bork, Robert H., The Tempting of America--The Political Seduction of the Law , (New York: Touchstone, 1990), p. 6.
I think that you would find your answer if you read the quote Matchett-PI provides: "Capitalism is quite simply the most moral system ..."
Now with me, capitalism is better than anything else that has come along, but I don't know that I would enthuse over its moral purity or start sending god packing. A lot of people get screwed every day who, based on personal behavior, competence, hard work, etc. deserve better, and a lot of incompetent lazy manipulative sleezes make out real good, so no, I would not say it is moral.
WRONG.
The author starts from the same premise as that of James Madison -- that it is the legislative branch of government --- the elected official's RESPONSIBILITY to pass JUST LAWS in the FIRST PLACE, which will result in JUSTICE being rendered to the citizenry when the judges uphold those laws.
What the heck does all that Bravo Sierra have to do with the definition of justice? After all that, you still did not define "Justice". Is it really that abstract to you? My understanding of justice doesn't use up a 100th. of the band width that you used to paste anothers epistle.
According to an Army Provost Marshal, I served under, justice was not complex or obscure. It is as follows:
First, it is to protect the innocent, second to comfort the innocent. Third, it is the apprehension of the guilty, which both protects and comforts the innocent and fourth, punish the guilty. The need for justice requires two parties, the innocent and the guilty and it requires one act, a crime committed by the guilty upon the innocent. Absent a crime, justice is not needed.
There, that wasn't so hard, was it? It may not be useful to serve whatever agenda you are promoting with the smoke and mirrors of excess words and a pretense to reason, but it has worked for me, for quite a long time.
Not true; if the judicial branch strikes down the law, the people and the legislature have one alternative left that NO COURT can strike down. Constitutional Amendment.
Of course the judiciary should NOT be legislating from the bench, which is what they seem to be doing lately.
I agree. It's almost a non-sequitur. An economic system that "promoted the {most} general welfare" with the least loss of personal liberty, to me would be a "moral" system. This whole thread is one of semantics. A more appropriate way to quantify an economic system would be efficiency. Capitalism is efficient until it reaches the point of excess production and value drops because of surplus goods. Socialism is never efficient at producing anything but shortages. Capitalism may overproduce Hula-Hoops, but there is still food on the market shelves.
Please pay attention - it is not that hard. The first sentence in the article reads, "It is not the court's job to do justice. It is the courts job to apply law." I didn't write those words, the author did - his very first sentence. He did so because he thinks he needs the dichotomy between doing justice and obeying the law to make whatever point he is trying to make. You cannot start with the premise that the job of the judiciary is not to do justice and get anywhere. It is just silly and I want none of a country that thinks its judges are not there to do justice. You also cannot start from the premise that the judiciary must blindly follow the law and - your argument not his - that justice blindly will follow. The author isn't concerned about justice. He is concerned about activist judges who create the right to an abortion. That is ok - I have no problem with his antiabortion opinion. I do have a problem with his worldview that to get to anti-abortionism judges cannot do justice. Turned around - and this follows logically from his argument if you would care to lay out the steps - denying the right of abortion is unjust, which I don't think he meant to say.
You also argue "the elected official's RESPONSIBILITY to pass JUST LAWS in the FIRST PLACE, which will result in JUSTICE being rendered to the citizenry when the judges uphold those laws." First upholding laws and blindly following laws are two very different things. Blindly following laws often results in grave injustice because of particulars of the circumstance - and no law could possibly anticipate and cover all of the unexpected occurences.
For instance, there is a law prohibiting any construction within 50 ft of a designated wetland. If two ducks decide to nest on your lawn located in a densely populate suburb should you be forced to tear your house down. The law might "require it." A reasonable judge would make a distinction between a preexisting wetland and the chance mating of wildlife. That is what judges do to do justice and to think otherwise is ignorant.
What "Just Laws", or more specific LAW, do YOU want passed and upheld to the absolute by judges?
For instance "Trying to unscramble the rationale of court decisions now-a-days is an exercise in frustration. How does one make sense of all the legalese and the opinions of the army of pundits that parade across our screen on the evening news? "
But one doesn't listen to Greta van Susternen to understand a legal decision. One reads the court decision itself. Many, most are quite well and clearly reasoned. Roe v Wade was not, but that condemns that particular case, not the judiciary as a whole.
But you may ask what if the law is a immoral? My answer is that the courts have no right to strike it down.
But suppose morality has little to do with it, but the law is unjust because it fails to comply with common legal precepts - some of which are stated in the Constitution and some of which predate the constitution.
I'm aware of that. I live in CA and I don't like it one bit. However, the 2nd amendment (should) provides for the private right to arms.
You start with the patently silly holding that the role of the judiciary is not justice and you accuse others of rowing with one oar.
The one thing that almost every honest citizen of the country does want from the judiciary is justice.
Your problem is that you need to read a primer on logic and rhetorical fallacies. Then you might get a clue how little of a clue you have.
Instead of BSing all over the place why won't you just write down for yourself, in your own words, a few lines stating what your point is. Not insults aimed at anyone else. Just your point. If your point is that activist judges are bad because they created a right to abortion, that is fine. Make that statement and I won't argue with you. But don't confuse yourself into thinking that in order to avoid abortion judges have to be unjust.
Please elaborate.
This is also untrue. Most supreme court cases turn on the interpretation of federal law and not on constitutional matters.
I think that this is just a bit harsh, however, it is clear that I do not fall into your definition of someone with good sense since I am not calling for an end pronto to Rehnquist's tyranny.
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