Now that the debate about judges has begun, I hope folks will remember that a conservative activist judge is just as bad as a liberal activist judge. What you want in a judge is someone who will attempt to interpret the law or the Constitution as it is written.
In the case of the Constitution, that means interpreting it as to its original meaning. To do otherwise is to usurp the legislative function.
Naturally, in the perverse way we argue, neither side will admit its judicial candidates are activists. Both call their choices people with proper judicial temperaments.
I’ve long believed that many Americans in their hearts don’t like democracy. Or, I should say, don’t like democracy when the vote doesn’t please them. Many bad judicial decisions are the result of activists, frustrated by failing to win in the legislature, going judge-shopping to find a judge who will legislate what the elected legislators refused to do.
The bans against abortion and school prayer are perfect examples. Both cases were acts of judicial legislating, as nothing in the Constitution could be construed to ban abortions or school prayer. Whether you are pro or con on these two subjects is not the point. The Constitution was never intended to speak on most issues. It was intended to define the roles of federal and state governments.
Freedom of religion does not mean freedom from religion. For nearly 200 years, no judge had ever banned prayer from public forums. The stupidity of banning prayer in public schools is shown by the fact that Congress has chaplains, as do the armed forces, not to mention that most public officeholders place their hand on the Bible when they take their oath of office. The purpose of establishing religious freedom was to encourage religion, not stifle it.
As for abortion, the Constitution is just dead-silent on that subject. Whether to permit or to ban abortions is a moral and philosophical issue, and those are reserved to the legislatures. The courts are only supposed to apply the law to a set of facts at the trial level and to interpret the law and rule on procedures at the appellate level. To conjure up a right to privacy for women only was absurd when the Bill of Rights says explicitly that our persons, homes and private papers may be searched as long as due process is followed. That’s the extent of any mention of privacy in the Constitution.
It all goes back to the War of Northern Aggression. The Reconstruction Amendments forced through after that war virtually killed states’ rights. They provide the excuse for the federal government to overrule both state legislatures and state courts. War winners not only get to write the history books, they get to write the laws, too.
Since nobody is about to even think about repealing any of those amendments, we will just go on fighting about federal judges. The liberals will appoint liberal activists; the conservatives will try to find conservative activists. That means, of course, making the appointment of judges both a partisan and an ideological matter, something we should not do.
As the Terri Schiavo case illustrated, people are not willing to give a judge credit for properly applying the law as it is written if the result is not to their liking. The proper solution, of course, is not to vilify the judge, but to change the law if you don’t like it. That’s probably too much to ask for people so easily swayed by demagogues and appeals to emotion.
There is one sound benefit: At least people are now thinking about the role of judges in the overall scheme of government. It does matter a great deal who sits on the bench in that black robe. They are the only government officials who have the power to imprison or kill people. And if the federal judiciary decides it will legislate, then we really are no longer a free country but a people subject to the rule of an unelected oligarchy.
By the same rule of separation of powers, legislatures have no authority to inject themselves into individual court cases, and the executive branch must never legislate with executive orders or inject itself into particular court cases.
Charley Reese [send him mail] has been a journalist for 49 years, reporting on everything from sports to politics. From 1969 to 1971, he worked as a campaign staffer for gubernatorial, senatorial and congressional races in several states. He was an editor, assistant to the publisher, and columnist for the Orlando Sentinel from 1971 to 2001. He now writes a syndicated column which is carried on LewRockwell.com. Reese served two years active duty in the U.S. Army as a tank gunner. Write to Charley Reese at P.O. Box 2446, Orlando, FL 32802.
© 2005 by King Features Syndicate, Inc.