Reality Check 101

 Canon one of the Code of Conduct for United States Judges notes, “An independent and honorable judiciary is indispensable to justice in our society.” Canon 2A continues that a judge should “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

The message is clear. The men and women who occupy federal benches are to radiate honor, integrity and impartiality to the society they serve. The stability and effectiveness of our justice system rests on the practical application of stellar character to courtroom processes and judicial pronouncements.

The debate over judicial activism is usually understood in terms of the handling or mishandling of written law. To that end, definitions of activism abound. The Seventh Circuit Court of Appeals has referred to activism as “construing the [contract] beyond its clear and obvious language…” To liberal talking heads, accusations of activism are simply sour grapes, complaints from the losing side in the culture war.

Even Alexander Hamilton, writing in Federalist 78 to defend our then new constitution could not foresee any future issue other than manipulation of the law. He wrote, “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be the least in a capacity to annoy or insure them. The Executive … dispenses the honors, the legislature prescribes the rules.” “It [Judiciary] may truly be said to have neither force nor will, but merely judgment.”

Thomas Sowell of Stanford University came closer to the real root of the activism issue when he wrote that the dispute is between those “who wish to see control of change in judicial hands and those who wish to see it in other hands.” It is as Black’s Law Dictionary puts it, a “philosophy of judicial decision-making.”

There is the crux of the matter – creatively reinterpreting the texts of the Constitution and statutory laws is an effect, not a cause. The conflict is between two opposing philosophies. One holds that written laws are interpretive putty, the other that they are contractual truth. Liberal courts view written laws as platforms from which to impose corrections whenever the America people are judged to be irrational or national leadership is judged to be lax in imposing what elites believe to be best.

For progressives, twentieth century radicalism turned twenty-first century liberalism, written laws do not represent contractual truth. They are the initial platform from which to launch a thousand judicially dictated corrections whenever the America people are judged by a federal bench to be irrational or national leadership is judged lax in forcing the people to accept what elites believe to be what is best.

U.S. District Judge Vaughn Walker provided a perfect case study when he struck down California’s amendment to their state constitution protecting traditional marriage.

Walker creatively declared the amendment in violation of equal protection and due process protections in spite of almost identical constitutionally tested laws in 31 other states. Rather than acknowledge the U.S. Supreme Court’s Baker vs. Nelson precedent protecting a state’s right to preserve traditional marriage, he cited the only slightly related the Lawrence sodomy ruling. He ignored America’s long history of laws prohibiting a multitude of sexual practices without running afoul of the U.S. Constitution. He completely ignored the federal defense of Marriage Law.

The problem for Judge Walker was not law. The challenge was to apply his worldview under the cloak of law. As a practicing homosexual, a ruling in favor or Prop 8 would have been a ruling against himself.

 The actual basis for Walker’s ruling is plainly stated in his written decision and has little to do with the truths of existing law. He decreed bizarre “findings of fact.” He somehow found that opposite sexes have never been the “historical core of the institution of marriage,” that traditional marriage is now an outmoded “artifact” and in spite of mountainous evidence to the contrary, “that parents’ genders are irrelevant” to childhood development.

His most telling and most blistering “fact” was saved for traditionalist and religious Americans. As Judge Walker put it, “evidence shows conclusively that moral and religious views form the only basis for believe” that same and opposite sex couples are different. He continued to have discovered as fact that “religious beliefs” harm gays and lesbians and that, in essence, the vast majority of Americans hold an irrational view of same-sex relationships.

In the end, campaigns for same-sex marriage and special civil rights protections have little to do with written law, even through courts whose job it is to honor written law. The war is about which world will win – one where truth is defined by whomever wins or one where truth wins in spite of who loses.