Judicial Tyranny

Stand To Reason ^ | 2003 | Gregory Koukl

[Patriotways]

Annan in historic meeting with Supreme Court &Congress/is believed to be unprecedented.http://www.freerepublic.com/forum/a3b0c30a81760.htm
a package of 34 treaties, all of which were ratified by a show of hands -- no recorded vote.http://www.freerepublic.com/forum/a3a325b3f5d31.htm
Wake-up Justice Breyer: U. S. Constitution should be subordinated to international will
http://www.freerepublic.com/focus/f-news/941589/posts

[AndyJackson]

The reason that this article, and the follow on commentary was destined to be such a muddle that it is really an argument about abortion. The ardent anti-abortionists cannot just come out and argue against abortion, however, and this leads them into a trap. A position on abortion is fundamentally a theological debate [I am against abortion so this is not meant to be pejorative], and so logical argument gets one little traction - on either side of the case. The fact is that Roe v Wade is was arguably one of the worst legal decisions ever made - largely because it was not a legal decision but in its own way a theological decision, and people are rightly upset that it was made at all. Nevertheless, to throw out the rest of our legal system by trying to force an absurd scheme onto courts (follow the law but avoid justice) in the mistaken belief that this will undo Roe v Wade, or prevent another similar travesty in the future, is not a wise course.

If they want to argue against abortion, then damn well be up front about it and argue against abortion.

[Matchett-PI]

"...this article is not worth the time to read it."

I disagree with your objections because I think you've missed the point by a MILE. I'm sorry you didn't read it because you wouldn't have missed the key elements, some of which are excerpted here below. I hope you'll take the time to read these and see if you change your mind:

"But you may ask what if the law is 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. ..

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. ...

..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. ...

..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. ...

...The popular vote protects us from tyranny in the legislative and executive branches. .." ~ Gregory Koukl

[elbucko]

I am pleased to meet you.

And I, you. Your post regarding the "dichotomy" of the article was spot on.

One of my favorite philosophers is Antoine de Saint Exupery, a Frenchman, unfortunately, but an aviator who had a his feet on the ground. He postulated that obfuscation in language was one of the reasons for war. The article that started this thread certainly tends to obfuscate the language.

Have a good Labor Day, Buck.

[AndyJackson]

You have fallen into the same false dichotomy as the author. For the most part there is no distinction between doing justice and applying the written law or there would be complete and utter chaos and upheaval. Trial judges everywhere, however, must taek the specific facts of the case into consideration and attempt to apply the legislative intent of the law to cases. Legitimate mechanical breakdown will often save you from conviction of obstructing traffic. In fact, there is an entire body of law called equity law which attempts to do justice in full. It derives from the equity laws passed in England to alleviate the injustice that occured from the blind application of common law. And equity law frequently tells a judge little more than to do justice in spite of conflicting laws.

[elbucko]

They are expressly denied the ability to stick their noses into those unlisted rights....

I like the way you think.

[Patriotways]

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

[AndyJackson]

Legislation, by its very design, is protected from elitism. Legislators are elected officials. They have accountability to the electorate.

What planet do you live on? A lot of bad law can go on for a long time before there is enough public pressure on the legislature to reform it.

You posted an interesting article about the influence of Calvinism on the founding fathers. Since I have deep distrust of anything having to do with Calivinism, I am having a bit of difficulty adjusting to the point, but I think that one of the points is that the founding fathers had little faith in the legislature either, voila the standing of the judiciary.

I think you've missed the point by a MILE

He starts off with a false dichotomy between justice and the law. Locating his starting point in a nonexistant logical abyss, and with his stated prejudice against justice, whatever that means, what possible point could he make through logical argument. Now, he may have some entirely valid point to make. If that is the case, he should make it and not bother with trying to dig hiself out of a nonexistent logical hole located somewhere near the 8th circle of hell.

[AndyJackson]

Wonderful document. I have read it to. And so?

[elbucko]

that it is really an argument about abortion.

That's what I thought too. I could smell the fire and brimstone between the words.

[elbucko]

"But you may ask what if the law is immoral? My answer is that the courts have no right to strike it down.

And my position is that the court would have a duty to strike it down. Morality trumps Legality!

[AndyJackson]

Our appeal to the Court should not be a moral one but a legal one. ...

You have a whole bunch of false dichotomies going between law, justice, morality, and the arguments that one would make to further each of these.

The fact is that you have tied yourself in a Ghordian knot in an effort not to argue about abortion when you are really arguing about abortion. If you want to argue abortion fine. Just say so, but give up the legalistic flim-flam.

[mrsmith]

"For the most part there is no distinction between doing justice and applying the written law or there would be complete and utter chaos and upheaval. "

And when there isa distinction, some seem to see the dichotomy:

"...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] "

It is apt for a judge to faithfully apply the law to the facts of the case.

Sure they have to deal with conflicting imperfect legislation, it is the legislature's and the peoples' job to correct that.

[Matchett-PI]

"That you don't seem to comprehend is that your article seems to elevate law above morality. The basis of law is morality, not the other way around."

Whose "morality"? Are you admitting that there is a standard of morality beyond your personal "conscience"? Hahaha

Anyway, if you had read the commentary more carefully, you would have seen your concern adressed:

"It is the elected official's __job__ to pass *just* laws."

JUST:".. being in conformity with what is morally right or good: Upright. Righteous.

[PhilipFreneau]

Judge Bork recalls the story of two of the greatest figures in our law, Justice Holmes and Judge Learned Hand.

Thanks to George Bush's stupidity, and RINO's like Specter, we got Souter instead of Judge Bork. That was a terrible blow to the constitution, our liberty, and the future of our nation.

[Matchett-PI]

Thank you for the link!

[elbucko]

Are you admitting that there is a standard of morality beyond your personal "conscience"?

Yes.

[tpaine]

--- All of our rights are not enumerated in the Constitution/BOR's..
Thus, the Justices must use their judgment as to the constitutional intent of the framers, when they make decisions based on these unlisted rights, such as our right to privacy.
8 -tpaine-



I'm sure you thought you were making some point in your Gramsci post, but I sure can't find it..

[elbucko]

JUST:".. being in conformity with what is morally right or good: Upright. Righteous.

And just exactly what is that? What is "right or good".

When I was an MP, a Provost Marshal gave me a definition of "justice" that has served me well all my life. I wonder what justice is to you. That everyone does as you want them to do!

[AndyJackson]

Sure they have to deal with conflicting imperfect legislation, it is the legislature's and the peoples' job to correct that.

First, I really doubt that your vision of "perfect" legislation is anything but a utopian dream. I don't know what it means and I won't trouble to try defining it. I will take as a likely premise that facts in real legal situations will always confound the intent of legislated laws.

I understand the legistlature's job in correcting the laws, however that takes 4-8 years realistically, and will afford little relief to the person awaiting legistlative action and unjustly convicted under a strict application of the law, that the judge knew to be unjust.

One of the other principles of our justice system is to keep the legislature out of it. They pass the laws - period. This is important. We do not try cases by public opinion or by legislative opinion either.