More on Judicial Review

My brother-in-law, who is studying law at Gonzaga University (and is specializing in constitutional law) had some interesting things to say about judicial review after he read the last post. He posted his response article at

http://www.americanfreemen.org/judicialactivism

He edited his article once, and I have included his changes. The following is the text of his article, (C) Stewart Feil, and reproduced here by permission.

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I'm not sure exactly where to start. It would be helpful to have a question to address. Or a key subject to direct comments toward. I guess I'll start with Judicial Review:

You are quite correct that Marbury v. Madison was the first time the Supreme Court (1) had the power to interpret the constitution; and (2) declared the courts to have the power to review legislative acts signed into law. Remember that Thomas Jefferson is credited with saying that the courts are the weakest branch of government, but that it is through them that this experiment will be destroyed. Since then the Court has gone through different phases of how it goes about judicial review. One of the greatest problems with the court is that the Justices are completely politically unaccountable. This means that President X could appoint a bunch of Justices who will shape how policy is applied for thirty years or more. (Justices have a tendency towards longevity once they are appointed--See Justice Stevens for an example). Unfortunately many of the most important Supreme Court decisions passed down in the last 100 years were made by the appointees of Franklin Delanoe Roosevelt. The court he created is the epitome of judicial activism.

Now it is also of critical importance to understand that judicial activists don't believe that they are judicial activists. They think that they are judges who are not blinded by prejudice, or bound to "tradition," or the old ways. They see themselves as Progressive thinkers. And because of the renown given their office, they are truly pompous enough to believe that only they are rational enough to tell the rest of the Universe what is appropriate or what is inappropriate (having long since abandoned any pretext of a belief in Right and Wrong). Whenever anyone cries, "Judicial Activist!" those towards whom the accusation is aimed simply retort with something best summed up as, "Redneck".

Many law professors (who would themselves be judicial activists if given the chance) try to discredit the title as a mere pejorative. It is not. The difference lies in the locus of political will: if it is in the court, it is activism; if it is in the legislative branch or the people, it is constitutional. And yes, I just juxtaposed as opposites "Activism" and "Constitutional". It is an apt comparison simply for the fact that Constitutional court behavior cannot be activist in nature. The implications to that are broad, and may be somewhat startling. First, Roe v. Wade must be over turned to maintain constitutional integrity. Next Brown v. Board of Education (it has nothing to do with the constitution anyway, it just parades about as being about constitutional rights. The fact of the matter is, it is about a bad interpretation of a legislative act, and the interpretation should have been overturned as idiotic, and irrational, and the statute given its proper, original meaning rather than by fundamentally changing the definition of "Liberty" so that the court could force its will upon the people. Most judicial activism centers around maldefining words, much like FDR and his inaugural address announcing the "New Bill of Rights").

Thanks to the last 70+ years of judicial activism, coupled with the abduction of the word "liberal" by collectivists of every ilk our society has forgotten that there is a difference between a right and an entitlement. There is a difference between charity and welfare. And there is a difference between welfare and socialism. Until the court can figure out the differences between those, it will always present a threat to those who believe in true liberty. It sickens me that in the name of liberty, those of religious faith are silenced. It sickens me that in the name of liberty states are constrained from determining their own moral values with regard to human life. It sickens me that an institution as old as the written record of humanity if not older is being challenged by those who behave in a manifestly unnatural way.

The California Supreme Court would have been within its power, and in fact truly fulfilling its responsibility if it had legitimate cause to strike down proposition 22 as unconstitutional discrimination.

"The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." CA Const. Art. 1 Sec 39(a).

Those are the constitutional words upon which the court struck down proposition 22 as unconstitutional. The court would concede that proposition 22 does not discriminate against people for race, color, ethnicity, or national origin. However, there is also no discrimination based upon sex. Sex is an objective category determined by looking at biological features. Proposition 22 applies equally to men who want to marry men and women who want to marry women. There is not discrimination based upon sex as a result of Proposition 22, and therefore it should not have been struck down. If the people of California want to protect sexual orientation as a constitutional class, the process should be amending the state constitution to include that language with the other protected class language already in Article 1 Section 39 (and repeated several other times in article 1), not by judicial fiat that there is another protected class.

How can all this be going on? Obviously national legislation has never been able to solve the question of abortion. I don't recall any clause in the constitution granting the federal government power to define morality for the states. In fact, the constitution quite clearly purports to LIMIT the powers of the federal government to those enumerated. It is not supposed to work like a well oiled machine. It is supposed to be a slow, tedious, and almost painful process. That way, the laws passed will at least have been given due consideration. But since FDR, that hasn't been good enough. The government must move faster. As such, the court greases the cogs. Congress delegates away much of its responsibility to agencies. Why? For efficiency. The system was never meant to be efficient. It was designed ensure that only the RIGHT laws passed. The problem arose when what was "right" in the eyes of 9 people wasn't being enacted quickly enough by the process, so they took it into their own hands. Of course, in doing so they paved the way to tip the scales well past the justice they sought to serve towards the tyranny that looms over use today as caused by such judicial fiat as the decision in In Re Marriage Cases. It's not about liberty. It's about the destruction of right and wrong. It's about the removal of consequences for wrongdoings. It's about dragging society down to the lowest common denominator--a process done slowly, and piece by piece until pretty soon everyone, ideally, will think that gay is normal, religion is the cause of hate, animals have more rights than humans, and some guy behind a curtain will be left holding a very large bag of wealth, redistributing it per whim. (Aside: no form of collectivism--communism, socialism, fascism--can function without extensive "community organizing" (yes, I'm jabbing at Barack with that one), and the person with the power over the plan has power over the life and death of every denizen unwilling to live [inside] the box. There is no such thing as a benevolent dictator. There is no Utopia. There is only tyranny and absolute power.)

It is one thing for the courts to overturn legislation when congress, or a state legislature lacked the political will to actually provide a functional law. The court is not supposed to make decisions of will for exactly the reason that elected representatives are: political accountability. Any time our government is to exert will over the citizenry, those officials who enacted the law must be fully accountable to the constituencies from whom they derived the power to enact the laws in the first place. The court has a proper role in overturning such laws as would shield officials from the political repercussions of their actions. The judiciary must unmask the charlatans of government. However, that is only half of the role of the judiciary. The greater duty of the judiciary is to the people themselves. The court must only exercise judgment. It must not exercise its will over the people, especially where the people have resoundingly spoken as to their will. When the Bill of Rights amended the constitution, it did not state mere truisms. It spoke of actual meaningful rights. Amendment Ten reads,

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

That doesn't mean that the people and the states are the same thing. It means that the people have meaningful power in this nation. If courts can blithely overturn law duly passed by referendum to the people, then the people have no power. This I cannot accept. Government only has power so long as the governed consent to that power. When the faith of citizens in their government dwindles, or rather is extinguished in the face of manifest tyranny such as that of the California Supreme Court, then it is likely the time for the tree of liberty to be watered again with the blood of patriots and tyrants is nigh at hand.

So, we are left once again with the question of the scope of judicial review. How far is too far? Too far is when a court creates a new constitutionally protected class where there was none before. Too far is when a state supreme court acts in such a way as to effectively create law for 49 other states. Too far is where the voice of the people is squelched by the voice and will of four virtually untouchable judges. Too far is where the California Supreme Court went with the In re Marriage cases decision. If that decision is upheld either by the failure of proposition 8 or in a later challenge before the US Supreme Court, then we will know that the new tyranny has emerged and established itself. When they come to take our religion, and our liberty, pray they have not first succeeded in taking our guns, for if they have, they will freely, and happily, take your life.

Stewart Feil