Wednesday, March 23, 2005

Abolishing the Judiciary

I have been asked, as a result of several of my posts, by liberal commenters whether I favored the abolition of the judiciary. And I find that the question says more about those asking it than it does about me and others who have been complaining about judicial overreach of late. As a member of the judicial branch of government (attorneys are officers of the Court), I certainly do not favor the abolition of the courts. But I do favor its restraint.

The courts are not law makers. They are law-appliers. They apply law to our disputes with the state and with one another and make decisions based upon it. But all to often judges look not to the law, but to a subjective and political concepts of "fairness" and rewrite the law out from underneath the litigants. It's one thing to set the rules of the game before you start. It is quite another to revise them mid-game to the benefit and/or detriment of the players who had no notice of the judge's political or philosophical epiphanies.

There are times when our laws violate the governing standards found in the U.S. Constitution and those of the various states, and the courts do exist to strike them. But they do not exist to "fix" them. The legislators can clean up their own messes. Because the laws set by judges are not subject to a vote of the people's elected representatives or the executive who has to carry them out. They are government by fiat.

The judiciary was designed to function as the people's final backstop between limited government and tyranny; they defend our freedoms by applying the laws by which we choose to be governed to the facts of a controversy, and weighing the Constitution that prescribes and proscribes government action against the very acts it takes. But when certain judges extend their power to the realm of restating, remaking, or formulating entirely new law, they have stepped beyond their mandate. Because the written law is not the starting point of contoversy. It is the thing that decides it.

But when the question arises about whether I want to eliminate the judiciary, it implies that those asking it have no problem with judicial overreach. Rather than the brand new rights which the Supreme Court begat (much like Victor Frankenstein at Ingolstadt) in Roe v. Wade, would these people find equally fair a finding that religious groups had a 1st Amendment right to teach classes advocating one faith over another in public schools so long as those classes were completely optional? Would they prefer a ruling that restricted abortion to people over the age of eighteen and only during the first two months--or outlawed it altogether except for cases where a pregnancy endangers the life of the mother? Would they welcome a ruling that found that pornography was not protected 1st Amendment speech? Would they accept a ruling that found that Miranda and its progeny placed extra-Constitutional and unnecessary burdens on law enforcement, thereby making any voluntary inculpatory statement and the evidence falling from it admissible against a defendant (save those that result from obvious coercion which really do violate the 5th Amendement)? Despite the fact that a fair reading of the terms of the Constitution may well permit such things, I can't imagine these folks popping champagne corks.

But because judicial overreach benefits the left significantly more than the right (as conservative judges often tend to be strict constructionists), leftists claim that an effort to rein in judges is an effort to abolish courts altogether. But sorry folks, the hyperbole is becoming all the more transparent. They are relying on an abuse of power to remain in the legitimate marketplace of ideas.

And I do want to abolish that.

1 Comments:

Blogger Karl Maher said...

I think you might like my blog, Vote for Judges. Main argument: You'd see a lot more discipline in the federal courts if federal judges had to stand for retention elections, as many state judges do.

6:23 PM  

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