Tuesday, February 21, 2012
Friday, February 10, 2012
Liberal Judges and the Constitution
Liberal judges have gone so far toward ignoring the Constitution and substituting their own preferences and ideolgical predilections for it that they are nearing the point where Congress will either have to rein in the courts or concede that America is a Platonic oligarchy of philosopher kings in the form of judges wearing black robes.
The most recent prominent judicial outrage is the decision of a federal judge that California's ban on gay marriage is unconstitutional. To reach that result the judge had to read the Constitution and find something somewhere in its wording which was intended to vindicate gay marriage against the will of the people to invalidate it. There is no such thing, not a single article, section, phrase, sentence or word. It is not there. Furthermore, the result prescribed by the judge could not possibly have been intended by the drafters or ratifyers of the Constitution or have been understood by them to be the consequence of their work. And the judge knew this, so he violated his oath of office. In thirty-one states the people have rejected gay marriage and have not approved it in one state. The Constitution of Massachusetts was drafted by John Adams, and anyone with even a passing acquaintence with the life and work of John Adams knows perfectly well that had the subject of gay marriage even occurred to him he would have written into that constitution a most emphatic prohibition. Yet the Supreme Judicial Court of Massachusetts decided that somewhere within the words of the state constitution is a validation of gay marriage. No there isn't. It was not intended by the drafters or ratifyers, or by the state legislature, or the governor, or the people of Massachusetts, who attempted to reverse the pro gay marriage ruling. Only a group of arrogant "philosopher kings" in black robes want it. In fact, not all gay people want it.
I am not concerned here with the merits of gay marriage, if any. I am concerned with what is happening when the majority of the people from coast to coast cannot prevail with democratic methods in the establishment of law. Here are the judges and here is the institution of gay marriage, unknown to every society, every culture, every religion, every legal system for all the thousands and thousands of years of recorded human history and disapproved by the people wherever it has appeared; yet the people are said to have nothing to say about the form, character and core values of their society, not simply incidental attributes, when a handfull of judges disagree.
But isn't there some argument offered by the judges in defense of what they do? Yes, and while it takes somewhat different form with different words it can be reduced to the following views. There is contained in the fourteenth amendment to the United States Constitution, and elsewhere in the Constitution and in the various state constitutions, the requirement of equal rights and equal treatment under the laws, federal and state. No one quarrels with that. And everyone knows the purpose for which that principle became so endemic to the laws, the culture, and the sometimes turbulent history of the United States, wherein it was once disputed. It was intended to remove the disgrace of slavery from the national landscape. The thirteenth amendment abolished slavery directly, de jure, but the drafters knew how cleverly an intended result can be thwarted by those who may be intent on manipulation of words and evasion of principles. Left alone, the thirteenth amendment would not have been sufficient to achieve its intended result because de facto slavery would have replaced the de jure slavery which had been abolished. To head off and prevent such evasion equal protection clauses were placed in the federal constitution and those state consitutions in states where slavery had existed or was thought still threatened.
As time went on the principle of equal protection was extended to other classes of people; women, for example, in cases of sex discrimination. It was extended in other ways, usually producing benign results generally accepted by the people. Questions of meaning do arise and some of them are complex and difficult; yet however we may resolve constitutional questions at the margins it is perfectly clear that while judges have some latitude in matters of interpretation, construction and application of laws and constitutions they have no moral or legal authority to transform, by judicial fiat, the fundamental nature of the society they are supposed to serve in accordance with the oath they have taken.
These liberal judges habitually find a principle to exist in the constitution which is not there and never was and is not even implied or hinted at. The judge will opine that there exists no "rational" basis for banning gay marriage and that such a ban does not promote any "compelling state interest". He or she will decide what is a "compelling state interest" and that will determine the outcome of the case even though neither the words "compelling state interest" nor the concept is contained anywhere in the constitution. Let us be clear. When the people desire some result by direct vote or through their representatives they have, by the expression of that desire in the form of legislation, themselves decided what is a sufficient state interest to warrant state action and the word "compelling" adds nothing to the matter in most cases. A "state interest" is any interest which the people wish to advance unless it is incompatible with the constitution. In a narrow range of cases it might be true that something which would ordinarily be unconstitutional may pass muster because of extreme necessity, although even that principle is not found in the Constitution except in the case of the suspension of habeus corpus. If, for the sake of argument, we posit that extreme necessity can justify going around a constitutional principle which would ordinarily be a bar to some course of action (a view which I believe is acceptable) resort to to the concept of a "compelling state interest" would make sense. But in the ordinary course of events the mere fact that the people want something to be done or not done, without anything more than that, should be enough to protect it from having to show any "compelling state interest". In other words, although perhaps the government can legitimately silence dissent during a violent revolution by a showing of a "compelling state interest" there should be no need to show it in the case of a bar against gay marriage because the courts are not in that case presented with a crisis or a measure which is clearly unconstitutional. And certainly an institution as sacrosanct as marriage over such a long period of time in so many regions, nations and cultures of the world can be protected against any charge of irrationality. Added to all the above, the liberal judge will frequently opine that gay marriage is a "fundamental" right. Really? If it is "fundamental" why did no one know about it prior to when the Supreme Court of Hawaii propounded the principle circa 1990? How can a right so "fundamental" have escaped the attention of all of the constitution's drafters and ratifyers and every recoginzed philosopher and religious leader in the history of the world from Plato and Moses to the present? When someone has to resort to such silliness to make his case, that case is not terribly solid.
You will also hear the argument that we have a "living constitution", the meaning of which will change from time to time. No, we do not, not in that sense. Meaning can sometimes change in its application through changes in circumstances but never through the mere passage of time. When each state is allocated two senators it will not become three or six senators through the passage of time. What can change is the application of certain principles, though not the spirit or intent. For example, the Constitution prohibits cruel and unusual punishment. At one time confinement to bread and water might not have been considered "cruel and unusual". It has long since become at least unusual. Furthermore, someone has to decide what is "cruel". Obviously the drafters left that to the reasonable discretion of judges and legislatures. As Abraham Lincoln pointed out in his first inaugural address, March 4, 1865, no document of reasonable length can anticipate in detail every question which will arise under it. Judges are not encyclopedias or dictionaries. There were expected to be reasonable people who truly intended to vindicate not what they wanted to be the law, but the law as it came to them.
Why are appellate courts even permitted, ever, to invalidate a federal or state law duly enacted? There are two reasons. First, Americans do not want a temporary majority animated by mass hysteria or thoughtless excitement to trample on rights plainly protected by the constitution and intended to be protected by the drafters and ratifiers thereof. The slow and ponderous rejection of gay marriage by a majority of the people in state after state hardly amounts to the sort of mass hyesteria and overreaction which judicial revue was intended to head off and obviate. Second, there are genuine gray areas in the application of some constitutional provisions. For example, although the constitution does guarantee access to legal counsel for anyone accused of a crime, it does not expressly require government to locate and pay for counsel when the defendant can do neither. That question invited a legitimate difference of opinion which was fortunately resolved in a positive way by the Supreme Court in Gideon vs. Wainright. But it should be clearly understood that if there is ever to be gay marriage in this country there must either be a massive and radical shift in the people's core values or a constitutional amendment to achieve it. Otherwise the imposition of gay marriage on an unwilling populace represents a usurpation of power by tyrants.
The most recent prominent judicial outrage is the decision of a federal judge that California's ban on gay marriage is unconstitutional. To reach that result the judge had to read the Constitution and find something somewhere in its wording which was intended to vindicate gay marriage against the will of the people to invalidate it. There is no such thing, not a single article, section, phrase, sentence or word. It is not there. Furthermore, the result prescribed by the judge could not possibly have been intended by the drafters or ratifyers of the Constitution or have been understood by them to be the consequence of their work. And the judge knew this, so he violated his oath of office. In thirty-one states the people have rejected gay marriage and have not approved it in one state. The Constitution of Massachusetts was drafted by John Adams, and anyone with even a passing acquaintence with the life and work of John Adams knows perfectly well that had the subject of gay marriage even occurred to him he would have written into that constitution a most emphatic prohibition. Yet the Supreme Judicial Court of Massachusetts decided that somewhere within the words of the state constitution is a validation of gay marriage. No there isn't. It was not intended by the drafters or ratifyers, or by the state legislature, or the governor, or the people of Massachusetts, who attempted to reverse the pro gay marriage ruling. Only a group of arrogant "philosopher kings" in black robes want it. In fact, not all gay people want it.
I am not concerned here with the merits of gay marriage, if any. I am concerned with what is happening when the majority of the people from coast to coast cannot prevail with democratic methods in the establishment of law. Here are the judges and here is the institution of gay marriage, unknown to every society, every culture, every religion, every legal system for all the thousands and thousands of years of recorded human history and disapproved by the people wherever it has appeared; yet the people are said to have nothing to say about the form, character and core values of their society, not simply incidental attributes, when a handfull of judges disagree.
But isn't there some argument offered by the judges in defense of what they do? Yes, and while it takes somewhat different form with different words it can be reduced to the following views. There is contained in the fourteenth amendment to the United States Constitution, and elsewhere in the Constitution and in the various state constitutions, the requirement of equal rights and equal treatment under the laws, federal and state. No one quarrels with that. And everyone knows the purpose for which that principle became so endemic to the laws, the culture, and the sometimes turbulent history of the United States, wherein it was once disputed. It was intended to remove the disgrace of slavery from the national landscape. The thirteenth amendment abolished slavery directly, de jure, but the drafters knew how cleverly an intended result can be thwarted by those who may be intent on manipulation of words and evasion of principles. Left alone, the thirteenth amendment would not have been sufficient to achieve its intended result because de facto slavery would have replaced the de jure slavery which had been abolished. To head off and prevent such evasion equal protection clauses were placed in the federal constitution and those state consitutions in states where slavery had existed or was thought still threatened.
As time went on the principle of equal protection was extended to other classes of people; women, for example, in cases of sex discrimination. It was extended in other ways, usually producing benign results generally accepted by the people. Questions of meaning do arise and some of them are complex and difficult; yet however we may resolve constitutional questions at the margins it is perfectly clear that while judges have some latitude in matters of interpretation, construction and application of laws and constitutions they have no moral or legal authority to transform, by judicial fiat, the fundamental nature of the society they are supposed to serve in accordance with the oath they have taken.
These liberal judges habitually find a principle to exist in the constitution which is not there and never was and is not even implied or hinted at. The judge will opine that there exists no "rational" basis for banning gay marriage and that such a ban does not promote any "compelling state interest". He or she will decide what is a "compelling state interest" and that will determine the outcome of the case even though neither the words "compelling state interest" nor the concept is contained anywhere in the constitution. Let us be clear. When the people desire some result by direct vote or through their representatives they have, by the expression of that desire in the form of legislation, themselves decided what is a sufficient state interest to warrant state action and the word "compelling" adds nothing to the matter in most cases. A "state interest" is any interest which the people wish to advance unless it is incompatible with the constitution. In a narrow range of cases it might be true that something which would ordinarily be unconstitutional may pass muster because of extreme necessity, although even that principle is not found in the Constitution except in the case of the suspension of habeus corpus. If, for the sake of argument, we posit that extreme necessity can justify going around a constitutional principle which would ordinarily be a bar to some course of action (a view which I believe is acceptable) resort to to the concept of a "compelling state interest" would make sense. But in the ordinary course of events the mere fact that the people want something to be done or not done, without anything more than that, should be enough to protect it from having to show any "compelling state interest". In other words, although perhaps the government can legitimately silence dissent during a violent revolution by a showing of a "compelling state interest" there should be no need to show it in the case of a bar against gay marriage because the courts are not in that case presented with a crisis or a measure which is clearly unconstitutional. And certainly an institution as sacrosanct as marriage over such a long period of time in so many regions, nations and cultures of the world can be protected against any charge of irrationality. Added to all the above, the liberal judge will frequently opine that gay marriage is a "fundamental" right. Really? If it is "fundamental" why did no one know about it prior to when the Supreme Court of Hawaii propounded the principle circa 1990? How can a right so "fundamental" have escaped the attention of all of the constitution's drafters and ratifyers and every recoginzed philosopher and religious leader in the history of the world from Plato and Moses to the present? When someone has to resort to such silliness to make his case, that case is not terribly solid.
You will also hear the argument that we have a "living constitution", the meaning of which will change from time to time. No, we do not, not in that sense. Meaning can sometimes change in its application through changes in circumstances but never through the mere passage of time. When each state is allocated two senators it will not become three or six senators through the passage of time. What can change is the application of certain principles, though not the spirit or intent. For example, the Constitution prohibits cruel and unusual punishment. At one time confinement to bread and water might not have been considered "cruel and unusual". It has long since become at least unusual. Furthermore, someone has to decide what is "cruel". Obviously the drafters left that to the reasonable discretion of judges and legislatures. As Abraham Lincoln pointed out in his first inaugural address, March 4, 1865, no document of reasonable length can anticipate in detail every question which will arise under it. Judges are not encyclopedias or dictionaries. There were expected to be reasonable people who truly intended to vindicate not what they wanted to be the law, but the law as it came to them.
Why are appellate courts even permitted, ever, to invalidate a federal or state law duly enacted? There are two reasons. First, Americans do not want a temporary majority animated by mass hysteria or thoughtless excitement to trample on rights plainly protected by the constitution and intended to be protected by the drafters and ratifiers thereof. The slow and ponderous rejection of gay marriage by a majority of the people in state after state hardly amounts to the sort of mass hyesteria and overreaction which judicial revue was intended to head off and obviate. Second, there are genuine gray areas in the application of some constitutional provisions. For example, although the constitution does guarantee access to legal counsel for anyone accused of a crime, it does not expressly require government to locate and pay for counsel when the defendant can do neither. That question invited a legitimate difference of opinion which was fortunately resolved in a positive way by the Supreme Court in Gideon vs. Wainright. But it should be clearly understood that if there is ever to be gay marriage in this country there must either be a massive and radical shift in the people's core values or a constitutional amendment to achieve it. Otherwise the imposition of gay marriage on an unwilling populace represents a usurpation of power by tyrants.
Saturday, January 28, 2012
Sunday, January 22, 2012
Friday, December 30, 2011
The Power of Reason and the Rule of Law
The principle reason for the moral confusion which seems to pervade the twenty-first century, in America and elsewhere, is the almost dogged determination of so many people to avoid the use of a power given to them by God; the power of reason. To illustrate, here is a true story. Fortunately it came to a good conclusion, but it might have had a disastrous ending. Late at night a car was being driven in a tough and nearly deserted neighborhood in St. Louis. It came to a red light and stopped. A lady driving alone came up behind it. Three young and menacing-looking men approached the lady's car using vile language, with one of them carrying what appeared to be a baseball bat. They were rather obviously durnk. The lady honked at the car in front of her to move on. There was no other traffic in the area. Streets in all directions were deserted. But the car in front refused to budge. Why? As the driver later explained, the light was red. The apparent hoodlums came on and on. As they reached the lady's car the light turned green and everyone in both cars, which then moved on, was safe. The nearly-victimized lady was furious, chased the car down through deserted streets until it pulled into a well-lit gas station where, in the presence of a police officer the story was told.
This is a perfect example of slavish dependence on a rule which had no logical application under the circumstances. Every day or so you can hear about some small child in the first or second grade being reprimanded or even suspended because he is found to be carrying a few cough drops or something like that against a rule prohibiting "drug possession". This is called "zero tolerance". Or someone compliments another person, usually female, on an attractive dress and is accused of sexual harrassment. Now and then a judge will hand down an absurdly harsh sentence because of a hard-and-fast rule in a case where common sense cries out against it, as in a case a few years ago wherein a judge sentenced a boy to five years in prison because of some minimum-sentence rule when all the boy was charged with was the possession of a single marijuana cigarette. (If you think the judge had no choice, he did. He could have ruled that the statute, or at least its application in the case at hand, amounted to a violation of the Constitution's ban on cruel and unusual punishment. If appellate courts want to reverse something like that, let them do so). And then there are horrific cases in which a judge or prosecutor demands the death penalty for someone when there is actual proof that he was innocent of the crime charged. "He had a fair trial", it will be said. The insanity of this escapes the judge or prosecutor, or he doesn't care about human life, or perhaps he is just incredibly stupid.
But don't we need rules? Yes, but we do not need to reach absurb results in the application of rules when they were obviously intended to apply to something else. When Abraham Lincoln was criticized for by-passing certain constitutional rights during the Civil War he explained that he had to violate some Constitutional provision here or there to save the entire Constitution, which was being torn apart. A prominent 20th Century jurist would say "The Constitution is not a suicide pact". Would the Founders favor a rigid adherence to the letter of the Constitution if that would probably result in the destruction of the whole Constitution? Does it not sometimes make sense to follow the spirit and intent of the law with constructions and applications which common sense dictates that the drafters and ratifiers of the law would have approved? There should of course be a presumption in favor of rules and a very good and compelling reason when their application is modified or even ignored. Obviously, any society needs rules, the fewer the better in my opinion, but some rules are necessary. Reason itself so demands.
This is a perfect example of slavish dependence on a rule which had no logical application under the circumstances. Every day or so you can hear about some small child in the first or second grade being reprimanded or even suspended because he is found to be carrying a few cough drops or something like that against a rule prohibiting "drug possession". This is called "zero tolerance". Or someone compliments another person, usually female, on an attractive dress and is accused of sexual harrassment. Now and then a judge will hand down an absurdly harsh sentence because of a hard-and-fast rule in a case where common sense cries out against it, as in a case a few years ago wherein a judge sentenced a boy to five years in prison because of some minimum-sentence rule when all the boy was charged with was the possession of a single marijuana cigarette. (If you think the judge had no choice, he did. He could have ruled that the statute, or at least its application in the case at hand, amounted to a violation of the Constitution's ban on cruel and unusual punishment. If appellate courts want to reverse something like that, let them do so). And then there are horrific cases in which a judge or prosecutor demands the death penalty for someone when there is actual proof that he was innocent of the crime charged. "He had a fair trial", it will be said. The insanity of this escapes the judge or prosecutor, or he doesn't care about human life, or perhaps he is just incredibly stupid.
But don't we need rules? Yes, but we do not need to reach absurb results in the application of rules when they were obviously intended to apply to something else. When Abraham Lincoln was criticized for by-passing certain constitutional rights during the Civil War he explained that he had to violate some Constitutional provision here or there to save the entire Constitution, which was being torn apart. A prominent 20th Century jurist would say "The Constitution is not a suicide pact". Would the Founders favor a rigid adherence to the letter of the Constitution if that would probably result in the destruction of the whole Constitution? Does it not sometimes make sense to follow the spirit and intent of the law with constructions and applications which common sense dictates that the drafters and ratifiers of the law would have approved? There should of course be a presumption in favor of rules and a very good and compelling reason when their application is modified or even ignored. Obviously, any society needs rules, the fewer the better in my opinion, but some rules are necessary. Reason itself so demands.
Tuesday, December 27, 2011
Freedom and its Limits
In defending the new government-mandated light bulbs a local columnist recently wrote, after reciting the putative benefits of the new bulbs, "I am unable to understand the principles that govern today's Republican Party, but it is wrong to pander to people's ignorance or to cater to what people want to believe rather than the truth". So shocking is the arrogance of such a statement that it is hard to know where to begin comment on it, albeit that similar assertions are so common that perhaps it shouldn't be so shocking after all. To be fair, the column in question is a cut above the usual hysterical name-calling tirades with which the print and broadcast media daily confront us because at least the writer does offer some tenable arguments in favor of the usefulness and economy of the new bulbs and he does recite facts or claims in support thereof. That, at least, is to his credit.
Aside from any other objection to the columnist's words, there remains a practical one. How many people are there who consider themselves ignorant or mindless of the truth? I have never encountered such a person. So it is fair to conclude that if the purpose of the column is to persuade people to the writer's point of view and away from some incompatible alternative, he failed. Up to that point he might have been getting somewhere. Then he ended his chance of that. So what did he expect to accomplish? And this is typical of the torrents of name-calling abusive political commentary to which the American public is routinely subjected.
Beyond that, there is a simple response to the writer's conundrum. It is easy to understand Republican principles. They are found in the words 'freedom' and the 'Bill of Rights'. Even if I am one hundred percent convinced that the new bulbs are better than the old ones in economy, performance or whatnot, I refuse to cede to the writer or to the government the privilege of deciding the matter for me. The old bulbs work. If I like things the way they are, the writer can buy the new ones and leave me alone. It's a nice arrangement. On a plainer level; who the hell does he think he is anyway?
But shouldn't the government deny to a would-be consumer something which is plainly lethal, such as potassium cyanide? Should I be allowed to go into any pharmacy and buy some of that? No, and for three reasons. First, I may not know it is poisonous, second I might be buying it to murder someone and third, something like potassium cyanide is so dangerous, its lethal effects so instantaneous, that the danger of its being imbibed --- for a child, for example --- is simply too great to allow it in free circulation. The first objection can be answered with adequate informative labelling, and I submit that no reasonable person can object to the disclosure of dangers. The second applies also to hammers, cars and a lot of other items which can be used properly with reasonable precautions whereas potassium cyanide is useful only in homocide. Suffice it to say that there are items which are so dangerous that their sale or use should be restricted or prohibited altogether. One should not be allowed to sell atom bombs indiscriminately. I tend to oppose the prohibition by the government of cigarette selling but favor information dissemination. Tell the public how bad they are but don't tell me that I can't smoke if I choose to in my own home (I don't). Freedom is an ideal. One can champion the principle without having to decide every particular case in advance of the necessity for doing so. What is required after the principle is accepted is the application of human reason. Not everyone will reach the same conclusions in every case. Hence democratic government. Unfortunately all too few people evince a willingness to use the capacity to reason with which they have been endowed by their Creator.
Aside from any other objection to the columnist's words, there remains a practical one. How many people are there who consider themselves ignorant or mindless of the truth? I have never encountered such a person. So it is fair to conclude that if the purpose of the column is to persuade people to the writer's point of view and away from some incompatible alternative, he failed. Up to that point he might have been getting somewhere. Then he ended his chance of that. So what did he expect to accomplish? And this is typical of the torrents of name-calling abusive political commentary to which the American public is routinely subjected.
Beyond that, there is a simple response to the writer's conundrum. It is easy to understand Republican principles. They are found in the words 'freedom' and the 'Bill of Rights'. Even if I am one hundred percent convinced that the new bulbs are better than the old ones in economy, performance or whatnot, I refuse to cede to the writer or to the government the privilege of deciding the matter for me. The old bulbs work. If I like things the way they are, the writer can buy the new ones and leave me alone. It's a nice arrangement. On a plainer level; who the hell does he think he is anyway?
But shouldn't the government deny to a would-be consumer something which is plainly lethal, such as potassium cyanide? Should I be allowed to go into any pharmacy and buy some of that? No, and for three reasons. First, I may not know it is poisonous, second I might be buying it to murder someone and third, something like potassium cyanide is so dangerous, its lethal effects so instantaneous, that the danger of its being imbibed --- for a child, for example --- is simply too great to allow it in free circulation. The first objection can be answered with adequate informative labelling, and I submit that no reasonable person can object to the disclosure of dangers. The second applies also to hammers, cars and a lot of other items which can be used properly with reasonable precautions whereas potassium cyanide is useful only in homocide. Suffice it to say that there are items which are so dangerous that their sale or use should be restricted or prohibited altogether. One should not be allowed to sell atom bombs indiscriminately. I tend to oppose the prohibition by the government of cigarette selling but favor information dissemination. Tell the public how bad they are but don't tell me that I can't smoke if I choose to in my own home (I don't). Freedom is an ideal. One can champion the principle without having to decide every particular case in advance of the necessity for doing so. What is required after the principle is accepted is the application of human reason. Not everyone will reach the same conclusions in every case. Hence democratic government. Unfortunately all too few people evince a willingness to use the capacity to reason with which they have been endowed by their Creator.
Wednesday, December 21, 2011
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