Robert Meyer
Judicial activism & Chicken Little
By Robert Meyer
There has been a growing outcry from the public about judicial tyranny: the tendency of liberal courts to read between the lines of the U.S. Constitution and discover interpretations that depart radically from the clear language of the clauses. This legal philosophy fits like a hand in a glove for those who champion a "living and breathing" Constitution. It is the first cousin to "legal positivism," the idea that case law and its precedents set forth by judges are the highest order we may appeal to for justice. This makes the intent of our framers irrelevant in jurisprudence and the "laws of nature and of nature's God" relegated to obscure poetry. To paraphrase one "erudite" judge of yesteryear; we are bound by a constitution, but it means what the judges say it means. Sir William Blackstone must be doing somersaults in his grave!
Unfortunately this is not the only demon of heresy that needs to be exorcised from the hallowed sanctum of our high court. Liberal Supreme Court associate Justice Ruth Bader Ginsberg has admitted in a recent lecture that the court consulted international law to help influence two recent court decisions. This influence was likely at least partially responsible for Justices Kennedy and O'Connor changing their verdicts on the constitutionality of state sodomy laws. The defections contradicted conclusions reached in the 1986 Bowers case. Apparently there is some agreement that we are "lost at sea" without the wise counsel of those "enlightened Europeans." After all, in this country you can still be executed for being found guilty of mass murder. How barbaric!
I don't know about you, but I'm not ready to be considered a citizen of the world at large and forfeit the rights maintained by the sweat and blood of the forefathers of this sovereign nation. Why should international law influence a decision that sets aside constitutional law of state statutes for that matter?
And I know all this talk about the Supreme Court being an interim legislature or a perpetual constitutional convention, is a euphemism for a legal theory violating the separation of powers. As James Madison declared, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution...." Thus the jurisprudence of original intent is the only valid principle for interpreting the constitution.This country was not meant to be ruled by the whims of an oligarchy of black-robed philosopher kings.
Then of course there is that matter of civil liberty. I've heard numerous people lament about the USA Patriot Act, citing Ben Franklin's epigram about the futility of trading liberty for security. The interesting upshot is that news pundit Tony Snow claimed that Sen. Dianne Feinstein, D-Calif. — no champion to conservative causes — has received about 28,000 negative responses to the Act, and about half of them have referenced issues that had nothing to do with the operation or content of the Patriot Act. Feinstein, to her credit, contacted the ACLU to find out about "all these abuses" and was informed that no current examples of civil liberty violations could be provided. Scorned Supreme Court nominee Robert Bork concurs with this anecdote, finding nothing objectionable about the Act and insisting that this legislation merely codified and unified existing governmental powers to streamline prosecution and operational logistics.
U.S. Atty. Gen. John Ashcroft has repeatedly stated that a judge must be convinced of a threat to national security before issuing an order. Considering the liberal tilt of courts these days, that's a tall order. All this tells me is that most of these objections aren't thoughtful and honest dissent, but are simply the mind-numbed parroting of liberal talking points designed to bash the administration. Franklin was concerned with real government encroachments, not the paranoid ranting of Chicken Little.
Why does nobody ever think of judicial activism as a threat to true civil liberty. "Evolving standards" can change in the wrong direction, after all.
© Robert Meyer
There has been a growing outcry from the public about judicial tyranny: the tendency of liberal courts to read between the lines of the U.S. Constitution and discover interpretations that depart radically from the clear language of the clauses. This legal philosophy fits like a hand in a glove for those who champion a "living and breathing" Constitution. It is the first cousin to "legal positivism," the idea that case law and its precedents set forth by judges are the highest order we may appeal to for justice. This makes the intent of our framers irrelevant in jurisprudence and the "laws of nature and of nature's God" relegated to obscure poetry. To paraphrase one "erudite" judge of yesteryear; we are bound by a constitution, but it means what the judges say it means. Sir William Blackstone must be doing somersaults in his grave!
Unfortunately this is not the only demon of heresy that needs to be exorcised from the hallowed sanctum of our high court. Liberal Supreme Court associate Justice Ruth Bader Ginsberg has admitted in a recent lecture that the court consulted international law to help influence two recent court decisions. This influence was likely at least partially responsible for Justices Kennedy and O'Connor changing their verdicts on the constitutionality of state sodomy laws. The defections contradicted conclusions reached in the 1986 Bowers case. Apparently there is some agreement that we are "lost at sea" without the wise counsel of those "enlightened Europeans." After all, in this country you can still be executed for being found guilty of mass murder. How barbaric!
I don't know about you, but I'm not ready to be considered a citizen of the world at large and forfeit the rights maintained by the sweat and blood of the forefathers of this sovereign nation. Why should international law influence a decision that sets aside constitutional law of state statutes for that matter?
And I know all this talk about the Supreme Court being an interim legislature or a perpetual constitutional convention, is a euphemism for a legal theory violating the separation of powers. As James Madison declared, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution...." Thus the jurisprudence of original intent is the only valid principle for interpreting the constitution.This country was not meant to be ruled by the whims of an oligarchy of black-robed philosopher kings.
Then of course there is that matter of civil liberty. I've heard numerous people lament about the USA Patriot Act, citing Ben Franklin's epigram about the futility of trading liberty for security. The interesting upshot is that news pundit Tony Snow claimed that Sen. Dianne Feinstein, D-Calif. — no champion to conservative causes — has received about 28,000 negative responses to the Act, and about half of them have referenced issues that had nothing to do with the operation or content of the Patriot Act. Feinstein, to her credit, contacted the ACLU to find out about "all these abuses" and was informed that no current examples of civil liberty violations could be provided. Scorned Supreme Court nominee Robert Bork concurs with this anecdote, finding nothing objectionable about the Act and insisting that this legislation merely codified and unified existing governmental powers to streamline prosecution and operational logistics.
U.S. Atty. Gen. John Ashcroft has repeatedly stated that a judge must be convinced of a threat to national security before issuing an order. Considering the liberal tilt of courts these days, that's a tall order. All this tells me is that most of these objections aren't thoughtful and honest dissent, but are simply the mind-numbed parroting of liberal talking points designed to bash the administration. Franklin was concerned with real government encroachments, not the paranoid ranting of Chicken Little.
Why does nobody ever think of judicial activism as a threat to true civil liberty. "Evolving standards" can change in the wrong direction, after all.
© Robert Meyer
The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)
