The Death of a Republic
One of the foundations of our Republic is that everyone is to be treated equal under the law. Yet this facet of our Republic is under attack from the very people who are sworn to apply that equal treatment - jurists. From the courtroom at the lowest level to the Supreme Court, the judiciary are making decisions that have little relationship to what's in the lawbooks, or the products of the legislatures of our local, state, and national elective bodies. This is both destructive of our legal profession and our nation, and must stop.
The Constitution of the United States established three branches of government: the legislative (House and Senate), the Executive (the President and his cabinet), and the judiciary (Supreme Court and whatever other courts the legislative branch deems necessary for the effective operation of our justice system). Each has unique duties: the legislative branch creates laws, the President enacts them, and the judiciary verifies non-compliance. The judiciary also is required to evaluate the work of the legislative branch to verify it doesn't violate the prime legal foundation of the United States, its Constitution and other founding documents.
For laws to be just, they must be applied equally in every case - the basis of "equal protection under the law". In order to be applied equally, lawyers, judges, and the people must be able to accept the same meaning of any law. For that to happen, the law must be well enough written that it doesn't contain any confusing ambiguities. The law gains greater stature the longer it's in force, as precedent is followed in its implementation and application.
The process works pretty much the way a grocery store operates: a shopper comes in and chooses certain items from the shelves, and pays for them at the check-out counter. Anyone else shopping in the store that day and choosing identical items will also be charged the same amount for that item. Imagine the chaos that would result if two people bought the same brand of cereal, in the same size box, yet one was charged $2 and the other charged $5, while the shelf advertised the price as $3.50. The clerks and managers would be lynched!
Judicial activism does much the same thing as charging different prices for the same item. It inserts something else into the equation other than the law as it was written. The "meaning of is" changes, catching both the prosecuter and the defender by surprise. Equality of justice is destroyed. Rather than applying the law, judges create the law by their decisions, usurping the legislative branch's duties and responsibilities.
In this respect, judicial activism is unconstitutional. It totally destroys the "equal protection under the law" that is a basic right of the individual by redefining the law, or replacing it altogether. It usurps the duties of the legislature to pass laws agreeable to the majority of the people, destroying the right of the people to choose who will make their laws. It bypasses the legislative debate process that is essential for a free people to govern themselves.
There are several answers to the problem. The first is to punish activist judges. They should be removed from the court and not allowed to hold any position in the judicial system - at any level - ever again. The second answer to the problem is for the legislative body to over-ride a judge's decision that is not based in Constitutional law. This, too, is a form of punishment for activist lawyers, as it tells them they are NOT the final arbiter the judiciary presumes themselves to be. It also corrects the problem caused by the judicial activism. Only the people, the overall body that establishes legitimacy of a government, can be the final arbiter of the laws adopted by that government. That duty cannot be delegated or abridged. The third and final answer is to educate the American people on the extent - and the limits - of the duties and responsibilities of each branch of government. This type of education has been all but eliminated from school curriculums since the mid-1960's.
In the end, it's the duty of the individual, working together en masse, to hold the judiciary accountable, both for their behavior and their adherence to the Constitution. For it to work, the Consitution must be considered a static document, capable of being changed only by amendment, not by the wishes of a handful of judges. That's the only way this nation can continue to be a nation with equal justice for all.
The Constitution of the United States established three branches of government: the legislative (House and Senate), the Executive (the President and his cabinet), and the judiciary (Supreme Court and whatever other courts the legislative branch deems necessary for the effective operation of our justice system). Each has unique duties: the legislative branch creates laws, the President enacts them, and the judiciary verifies non-compliance. The judiciary also is required to evaluate the work of the legislative branch to verify it doesn't violate the prime legal foundation of the United States, its Constitution and other founding documents.
For laws to be just, they must be applied equally in every case - the basis of "equal protection under the law". In order to be applied equally, lawyers, judges, and the people must be able to accept the same meaning of any law. For that to happen, the law must be well enough written that it doesn't contain any confusing ambiguities. The law gains greater stature the longer it's in force, as precedent is followed in its implementation and application.
The process works pretty much the way a grocery store operates: a shopper comes in and chooses certain items from the shelves, and pays for them at the check-out counter. Anyone else shopping in the store that day and choosing identical items will also be charged the same amount for that item. Imagine the chaos that would result if two people bought the same brand of cereal, in the same size box, yet one was charged $2 and the other charged $5, while the shelf advertised the price as $3.50. The clerks and managers would be lynched!
Judicial activism does much the same thing as charging different prices for the same item. It inserts something else into the equation other than the law as it was written. The "meaning of is" changes, catching both the prosecuter and the defender by surprise. Equality of justice is destroyed. Rather than applying the law, judges create the law by their decisions, usurping the legislative branch's duties and responsibilities.
In this respect, judicial activism is unconstitutional. It totally destroys the "equal protection under the law" that is a basic right of the individual by redefining the law, or replacing it altogether. It usurps the duties of the legislature to pass laws agreeable to the majority of the people, destroying the right of the people to choose who will make their laws. It bypasses the legislative debate process that is essential for a free people to govern themselves.
There are several answers to the problem. The first is to punish activist judges. They should be removed from the court and not allowed to hold any position in the judicial system - at any level - ever again. The second answer to the problem is for the legislative body to over-ride a judge's decision that is not based in Constitutional law. This, too, is a form of punishment for activist lawyers, as it tells them they are NOT the final arbiter the judiciary presumes themselves to be. It also corrects the problem caused by the judicial activism. Only the people, the overall body that establishes legitimacy of a government, can be the final arbiter of the laws adopted by that government. That duty cannot be delegated or abridged. The third and final answer is to educate the American people on the extent - and the limits - of the duties and responsibilities of each branch of government. This type of education has been all but eliminated from school curriculums since the mid-1960's.
In the end, it's the duty of the individual, working together en masse, to hold the judiciary accountable, both for their behavior and their adherence to the Constitution. For it to work, the Consitution must be considered a static document, capable of being changed only by amendment, not by the wishes of a handful of judges. That's the only way this nation can continue to be a nation with equal justice for all.
posted by Old Patriot | 9:52 PM
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