0505 Judicial Rule
“The judiciary…has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” “[This view] proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two…” (Federalist # 78, Alexander Hamilton).
Such was the evaluation of one commissioned with the task of defending the essential qualities of a newly proposed system of government in 1787. Hamilton was an insider who not only helped formulate essential principles instituted in the Constitution, but also displayed deep insight into what power structures and political relationships this wholly new federalist representative republic would require to thrive. All indications are that his sentiments were an accurate reflection of all the framers.
Thomas Jefferson was not silent either. Still troubled by the Supreme Court’s first historic power grab of 1801 (Marbury V. Madison), he wrote in 1819 that “…the germ of dissolution of our federal government is in the constitution of the federal judiciary…gaining a little today and a little tomorrow, and advancing its noiseless step like a thief…until all shall be usurped.”
In recent years, the admonitions of Hamilton and the prophecy of Jefferson have begun creeping into reality at the behest of black-robed pontiffs. As Supreme Court Justice Antonin Scalia recently noted, “…the court has essentially liberated itself from the text of the Constitution.” With ever greater frequency the federal judiciary, along with a minority of state courts, are blatantly abusing their discretionary powers in order to adjudicate from positions of social philosophy, cultural nuance and, as Justice Scalia has also noticed, legal abstractions.
At present, because it can not achieve its goals by legitimate democratic processes, minority social liberalism is enjoying the ability to force the rest of America toward self-centered secularism. What they don’t seem to grasp is that today’s victories are spawning a legal/political schizophrenia that could just as easily turn on them. Any judiciary which abandons natural interpretation of written text in order to incubate “living organism[s]” of law makes nothing but putty of any foundation for reason. Once it tastes such power over both its own government and the people, it will never rest again.
Consider the reasoning for recent rulings. The most recent and most egregious example is the Schiavo case. State probate Judge George Greer simply ignored five Florida statutes and several federal subpoenas, not by citing higher laws, but because, he complained in legalese, that his judgments might be threatened and because those who make the laws he was supposed to interpret would be “involved in the courtroom”. U.S. District Court Judge Whittemore fared no better. He snubbed duly enacted federal law, not because of legal precedent, but because he decided the case didn’t have “…a substantial likelihood of success…”
In March alone, at least three rulings have employed nuance, philosophy and abstractions rather than legal statutes for part of their decisions. San Francisco Superior Court judge Kramer ruled against traditional marriage because it appeared to him that “…no rational purpose exists…” for limiting marriage. U.S. district Court judge Lancaster struck down pornography laws partly because “…upholding the public sense of morality…” was not a legitimate state interest. Five Supreme Court justices violated their oaths recently when they further limited capital punishment by referencing the “…international public opinion…” and an international treaty rejected by the United States.
The greatest constitutional government in the world will not survive if the judiciary is allowed to become a rule unto itself with Congress and the president its servants and the will of the people its beggar. It will not be conservatism that destroys the rule of law, but an arrogant judiciary composed of individuals who lack commitment to the Constitution as the supreme law of the land (including the express language of its text), disregard the rule of precedence, and adjudicate outside written law and the facts of each case.