The Second Legislature
When our Founders set the framework for our government, they established three branches, each with the ability to check an overreach of the others. The idea was that centralized power was an inherently bad thing, because it left too much power in the hands of too few people. So to combat that, they drafted a government nt of divided, enumerated, and limited powers, where the legislature writes the laws by which we will be governed, the executive approves and carries them out, and the judiciary decides controversies based upon them and if necessary, strikes them if they are incongruent with the terms of the Constitution. And lastly, the powers not enumerated remain in the hands of the states/localities and the people, not to be swooped up by the Federal government as it likes, but only by the passage of a Constitutional amendment.
I provide that mini-primer on civics because we have to a very significant degree lost the concept of how our laws are made and how we allow ourselves to be governed. And it seems that the social contract has been violated by judges who ignore the law and rewrite it.
I alluded to the arrival of this piece here when I discussed the value of judicial appointments. At this point in our history there are few other things that are more important than the judges who sit on our Federal and state courts. And that's actually a sign of an unfortunate development. Because the rulings of judges should almost always be boringly predictable upon a plain reading of plainly-worded law. And as I write, the U.S. Supreme Court was kind enough to provide fodder for this post by the Roper v. Simmons decision. Thanks to Justice Anthony Kennedy for the reach.
In the Roper decision, Justice Kennedy, citing a so-called "national consensus", "standards of decency" and relying on extralegal, non-binding, and non-persuasive sources, such as socio-political studies, psychological research, unratified treaties and the practices of other nations, he and four other unelected and unaccountable justices supplanted their judgment for that of 20 state legislatures made up of people who are frequently subject to election and removal. There is nothing wrong with the simple act of considering those materials and reaching the academic conclusions that the Justices did. But there is every problem in the world with the Justices applying such research to the law. Because that's why the legislatures conduct hearings on the impact and efficacy of the laws they pass.
The courts do not exist to put new law on the books, but rather simply to balance them. Put another way, the courts exist to make sure that the laws agree with the Constitutions of the various states and of the United States, and to strike the ones that don't. They do not exist to rewrite them or insert new meaning into them that is not plainly discernible from the text to fit the particular judge's political concept of the way the law "ought" to be. But judicial activism has become the practice, rather than the hallmark of sloppiness and disrespect that it is.
Judicial activism takes its most common form through the treatment of law as one treats literature in a college classroom, where judges put whatever fanciful political meaning they desire into existing law, rather than taking a plain meaning from its terms. The best example are the decisions that come from the "penumbral" (meaning "shadow surrounding") cases which have broadened the terms of the Constitution to the point that the words themselves have become largely meaningless. Roe v. Wade is a perfect example of a decision where "penumbral rights" were held to emerge from the provisions of the Constitution.
Roe held that there was an inherent right to privacy that could be interpreted from the terms of the Constitution, and that those rights in some way included the right to abort a pregnancy. Ignoring the moral and emotional debate that surrounds abortion, Roe was a very big reach. The terms of the Constitution say nothing about privacy, let alone reproduction or the rights attendant with it. It is not even implied. But the Justices, wanting to bow to what they felt was an emerging trend in society at the height of the sexual revolution, made law from loose philosophy about law.
And while the spurious reasoning of Roe had at least some loose ties to the text of the Constitution, the aforementioned Roper does not. Roper held that the death penalty for murderers who committed their crimes while under the age of 18 was unconstitutional because of a consensus that the Justices claimed had developed. Avoiding any discussion of the actual text of the Constitution itself in their reasoning, the Justices reached their decision. There is nothing per se constitutional or otherwise about consenses or a developing political trend, Nor about penumbras, or what the law might be interpreted to mean by individual justices. It only becomes "Constitutional" when the states ratify a new amendment to the Constitution. In the most boring of senses, the Constitution "is what it is", and only becomes something different if amended.
The implications of the Roper decision are breathtaking, because this means that Justice Kennedy and his four brethren who joined him do not believe that the actual terms of the Constitution need to be considered when determining what exactly is "Constitutional". Instead, this opinion means that the term "Constitutional" is defined by which way the wind is blowing.
But that is why we have Federal and state legislatures. Legislators hear citizen concerns and write bills that are debated, tweaked, researched and ultimately voted on by the legislative body and approved or vetoed by the executive. If there is a consensus, the legislators will deal with it. And if they get it wrong or have a tin ear, they'll have to answer to the voters. This is why our founders battled over the mechanics of government in the first place. They hated the tyranny of the English Crown and wanted to spread out power so that one person or group of people did not have the ability to hijack the government. But when courts take on the job of the legislature, by restating or writing entirely new laws because of changes they perceive in society, a hijacking is just what you get. A look at Roper and Roe should tell anyone why such loose interpretations are dangerous. Because anyone can pull any meaning out of any statute if they want to and make it law, and the public has no say in the way a judge "interprets" the law.
Judges who for the most part have life terms, enjoy such tenure by design. It was the intent of the framers that they would be isolated from the swinging pendulum of public opinion, thereby making decisions on the law that, while possibly boring and unpopular, were congruent with the law. If the people disliked the law upon which such decisions were based, they had legislators to whom they could turn. But that isolation has actually turned many courts into unelectable and unaccountable legislatures. And most of them tend to bend towards the left.
With that backdrop, enter the current controversy over activist and strict constructionist judges. Republicans, including President Bush prefer to appoint judges to the Federal courts who are strict constructionists, meaning individuals who interpret the law within the language of the statute. And the Democrats, especially those in the Senate have taken that term to mean "judges who will legislate conservative policies from the bench", because these liberals believe that it is the job of judges to be political activists--in essence, a co-equal legislature. So much is that their belief that in an unintentionally revealing moment, Sen. Charles Schumer (D-NY) declared an appointee's political views to be fair game when considering their appointment to the Federal bench. Unwittingly, of course, Senator Schumer admitted that he believes that it is the province of judges to supersede the work of the legislators if the law does not agree with the individual judge's concept of what it ought to be. He and others on the left want to make sure that the judges making those calls are liberals.
But that's just the problem. Conservatives who tend to be strict constructionists almost always refuse to apply novel meanings to laws, but insist that the laws should stand by themselves. Some on the left consider it "punishing" the legislature for not writing decent laws. But the laws exist to place people on notice of prescribed or proscribed behavior, and the legislature is in complete control of how such things are worded. Loopholes and poor drafting do happen, but the legislature can and regularly does amend its work as well. It is not for the court to stretch or contract laws beyond their clear terms unless they violate the clear meaning of the Constitution, because to do anything different would be to make our justice system from one objective fairness to one of a judge's selective whim.
The making of laws is a political art unto itself. Certainly there are crackpot bills offered in both the Federal and state legislatures, but they never really see the light of day. They either die in committee, or if they improvidently make their way to a full floor vote, are killed there. Because it requires a consensus for bills to pass, and reconciliation of the differences between the bills of both houses (except Nebraska which as but one legislative chamber), unpopular legislation often never passes. And legislators, whom we expect to legislate their political leanings, are held responsible at regular intervals for the bills to which they affix their name or their vote.
Essentially, newspapers have no place in a judge's chambers. If there are trends changing in society and the people favor a particular shift in the law, it is time for the legislature to write it. It is not the job of the court to beat them to it.
Because there is a very fine line between the power which a judge holds and tyranny. The difference is how the individual judge wields that power. And such a subjective standard is intolerably dangerous to our form of government. And it is time that we as a society place open and obvious limits on the power of courts to make decisions in the stead of our elected representatives.
Being governed by the unelected is a frightening thing. And when laws stand and fall based upon whether individual judges like them on a political basis, our freedoms are being eroded.