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Where Law is Whimsy:
The Fantastic World Of Liberal Judicial Activism
By A.J. DiCintio©
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History
repeats itself because human nature repeats itself. Every great
writer and every great thinker has understood this truth, including
Thomas Jefferson, who rejected the “words, words, words” of both
foolish idealists and closet kings to argue that to secure people’s
“unalienable rights,” government must be based upon the realities of
human nature, especially that reality Washington phrased as the
“love of power, and proneness to abuse it, which predominates in the
human heart.”
This devotion
to the truths of human nature lay beneath Jefferson’s contention
that the Framers of the Constitution erred in failing to explicitly
limit the power of the judiciary, a point Jefferson often raised
with great vigor as in the following: “The original error [was in]
establishing a judiciary independent of the nation, and which, from
the citadel of the law, can turn its guns on those they were meant
to defend, and control and fashion their proceedings to its own
will.” Who can read that sentence without acknowledging Jefferson’s
keen grasp of the danger posed by a judiciary in which judges
appointed for life can be removed only through impeachment, a
process which Jefferson called “an impracticable thing, a mere
scarecrow.”
Indeed,
every person who is honest about human nature will agree that an
unaccountable judiciary which says to the people “trust us” is a
judiciary which will breed judges who will find a way to rule
according to their “own will.” And every honest person aware of the
fact that politics renders the impeachment of a judge (or a
President) nearly impossible will agree that impeachment as a
control upon judges who abuse their power is “a mere scarecrow.”
Because he
was honest about human nature, Jefferson would not be surprised that
one day politicians and judges would attempt to institutionalize
judicial activism as a theory of government (which is what judicial
activism actually is and thus properly ought to be called “judicial
oligarchy”). Listen to Jefferson’s comment about the natural impulse
of judges: “Their maxim is boni judicis est ampliare
jurisdictionem
[good justice is broad jurisdiction], and their power the more
dangerous as they are in office for life and not responsible, as the
other functionaries are, to the elective control.”
A little
more than a century after Jefferson issued his warnings about an
unfettered judiciary, the institutionalization of a judicial
oligarchy did indeed occur when Liberals (both Democrats and
Republicans) coined the euphemism “judicial activism” and
instituted Liberal Judicial Activism at the Supreme Court. Fifty
years later, this political disease has insidiously metastasized
into the judiciary at all levels, into law schools, and even lately
(for imitation is the sincerest form of flattery) into the executive
as “executive activism” (if only, like an incipient cancer, at the
municipal level).
Like the
wolf of Dante’s Inferno, who “after eating is hungrier than before,”
those who will not control their appetite for power disguise their
gluttony with “words, words, words.” So it is with Liberal Judicial
Activists, who refuse to define themselves as oligarchs, arguing
instead that “good justice” is indeed “broad jurisdiction” as they
inundate us with an ocean of words to convince us that the
Constitution and other laws are “living documents” which require
“interpretations” of their supposed life changes by an “enlightened”
judiciary.
But a person
doesn’t have to be the giant that Jefferson was to know that this
claim of “good justice” defies the truth that judges who one moment
invoke the law as sacrosanct and the next moment speak of “evolving
standards of decency” do nothing more than interpret the law
according to their “own will.” To exemplify this fact, we turn to
the words of Justice Anthony Kennedy (a frightening exercise because
Justice Kennedy hardly represents the most activist justice ever to
sit on the Supreme Court).
The date is
June 26, 2003, the case is Lawrence v. Texas, in which
Justice Kennedy delivers the opinion of the court, writing, “The
issue is whether the majority may use the power of the State to
enforce these views [views about homosexual sex] on the whole
society through operation of the criminal law.” Then, to support the
Court’s contention that the majority may not “enforce these views on
the whole of society,” Kennedy quotes from Planned Parenthood of
Southeastern Pa. v. Casey: “Our [the Court’s] obligation is to
define the liberty of all, not to mandate our own moral code.”
The date is
March 1, 2005, the case is Roper v. Simmons, in which Justice
Kennedy delivers the opinion of the Court, writing, “To implement
this framework [of interpreting the Eighth Amendment] this Court has
established the propriety and affirmed the necessity of referring to
‘the evolving standards of decency that mark the progress of a
maturing society’ to determine which punishments are so
disproportionate as to be ‘cruel and unusual.’” [In this case the
Court held that laws permitting the death penalty for any person
under the age of eighteen are unconstitutional.]
Despite
their personal views of what the law ought to say concerning the
issues litigated in these two cases, honest people will admit that
the cases offer a clear look into the fantastic world of Liberal
Judicial Activism, a maddening world in which judges pronounce that
“the law is the law is the law” despite any prevailing “moral code”
until presto! they tell us that the law is what judges think the
people consider “decent” despite what the people may think is
“decent” tomorrow.
Further
examples of how Liberal Judicial Activists have created a tangled
and deceitful web of contradictions which can be explained only by
the fact that they ultimately rule according to their “own will”
must wait for another time. For now, readers might consider what
Liberal Judicial Activists really have in mind for a constitutional
democracy “of the people, by the people, for the people” by
contemplating the full implications of words spoken by the tumbling
Alice who found herself bewildered in a world ruled by transient
laws of logic and capricious words whose meanings are as fleeting as
the whims of a cat.
“‘Who are
you?’ said the Caterpillar.”
“I--I hardly
know, Sir, just at present--at least I know who I was when I got up
this morning, but I think I must have been changed several times
since then.”
Copyright by A.J.
DiCintio
Reprinted with Permission from
A.J. DiCintio
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