Free Republic
Browse · Search
Topics · Post Article

Skip to comments.

Disarming activist judges
Waterbury Republican-American ^ | 12/21/03 | Editorial

Posted on 12/21/2003 7:00:56 AM PST by Holly_P

In his farewell address in 1796, George Washington cautioned his countrymen and their posterity about protecting the newly minted separation of powers established for the republic. He warned about nefarious actors who might refuse to confine themselves to their constitutional duties. Free-lancing, he advised, would lead "one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create ... a real despotism."

Members of the Massachusetts legislature should consider his admonition before going through with their plan to try placate the Massachusetts Supreme Judicial Court with a sweeping civil-union bill in response to the court's despotic 4-3 ruling on Nov. 18 ordering them to fashion a law giving homosexuals the right to "marry."

The court said the state Constitution implicitly grants homosexuals that right, but in real life the Constitution expressly states the legislature, not four unelected jurists, writes the laws and delegates responsibilities pertaining to marriage and divorce.

Besides, legal precedent dating to 1810 holds that marriage in Massachusetts "is an engagement, by which a single man and a single woman of sufficient discretion take each other as husband and wife." It's why Bay State courts have, until now, consistently deferred to the legislature in matters of jurisdiction over marriage.

But in the sphere of judicial activism — judicial tyranny, really — the rule of law is subverted by the jurists' agendas, in this case establishing homosexual "marriage."

Judicial tyranny is employed most frequently by those holding minority views who want to pervert America's principles but know they cannot win popular backing through the legislative process. They learned long ago that bypassing the rule of law in this manner is quick, easy and virtually irreversible. All they need is an activist judge who enjoys legislating from the bench and who knows from experience that lawmakers will never lift a finger to stop him.

However, an alternative to legislative capitulation exists: Lawmakers can get rid of judges who refuse to confine themselves within their constitutional bounds. In Federalist No. 81, Alexander Hamilton said he believed the nation need not fear judicial encroachment because "there never can be a danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with (impeachment)."

What Mr. Hamilton didn't foresee were legislators afraid to wield that all-important power even as they witnessed the continued exercise of illegitimate authority and subversion of the separation of powers by activist judges. So instead of impeaching the four justices, lawmakers meekly seek their advice on what they want the "marriage" law to say.

They are sure to hear back from the court before Feb. 11, when a constitutional convention is scheduled to consider an amendment that would limit marriage to heterosexuals and ban civil unions and homosexual marriages.

"(L)et there be no change by usurpation," President Washington advised his countrymen more than 200 years ago, "for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed."

Impeachment is the constitutionally prescribed method for disarming activist jurists. For once, Massachusetts lawmakers ought to summon the courage to use it.

TOPICS: Constitution/Conservatism; Culture/Society; US: Massachusetts
KEYWORDS: blackrobedtyrants; founders; goodridge; homosexualagenda; impeachthejudges; judicialtyranny; margaretmarshall

1 posted on 12/21/2003 7:00:56 AM PST by Holly_P
[ Post Reply | Private Reply | View Replies]

To: Holly_P
Uh Oh! If we are depending on legislatures to stop activist judges we are in deep trouble.
2 posted on 12/21/2003 7:24:10 AM PST by microgood (They will all die......most of them.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Holly_P
George Washington was right, and so is the author. Unfortunately, We The People elected the wimpy legislators who don't mind being usurped by 3-judge panels.
3 posted on 12/21/2003 7:29:10 AM PST by arasina
[ Post Reply | Private Reply | To 1 | View Replies]

To: microgood
Uh Oh! If we are depending on legislatures to stop activist judges we are in deep trouble.

We are.

4 posted on 12/21/2003 8:39:07 AM PST by Clint Williams
[ Post Reply | Private Reply | To 2 | View Replies]

To: arasina
and by so doing--prove what Webster taught "If the citizens neglect their duty (to choose for their rulers just men
who will rule in fear of God) the government will soon be
corrupted ,and laws will be made not for the public good,so
much as for selfish or local purposes, corrupt or incompetent men will be appointed to execute the laws;the
public revenues will be squandered on unworthy men;and the
rights of the citizens will be violated or disregaurded."
5 posted on 12/21/2003 9:20:22 AM PST by StonyBurk
[ Post Reply | Private Reply | To 3 | View Replies]

To: arasina
There are many causes for the problem we're now in. The earliest decisions in the current wave of judicial activism were morally (though not legally) justified. That includes Brown vs. Board of Education. It was morally right to disband forced segregation, but not really constitutional in the sense that federal courts lacked such explicit authority.

But the decision stood, and came to be accepted by most reasonable people because the result (ending mistreatment of minorities) was so clearly a good thing. The problem is that it gave the Supreme Court a powerful boost in authority. It establshed that the court's role is not to dispense law, but to dispense "social justice" as defined by the prevailing zeitgeist in the upper levels of elite society. Henceforth, if the justices saw something in society that they deemed "wrong", as viewed through elite "liberal" glasses, they felt free to intrude, even if they had zero constitutional authority to do so.

The public was soon taught, by our "liberal" media and "liberal" schools, that this was the court's role. The fact that most reasonable people agreed that Brown was a morally just decision solidified that concept. From that point forward, the court felt free to build upon Brown with such things as forced busing, affirmative action, and other rulings. Some of these explicitly violated Brown (Brown said students can't be assigned to schools by race, the busing rulings said they had to be assigned to schools by race) but that no longer mattered. Neither the Constitution nor logic was any longer in play. Only the court's sense of "social justice" mattered.

Of course, such rulings couldn't be limited to racial issues, and so we had prayer banned from schools, Nativity scenes ripped from court house lawns, abortion legalized, death penalties vacated, sodomy laws repealed, military academies forced to admit females, and more. We're now on the verge of having our multi-thousand year old institution of marriage voided by judicial fiat.

Of course, anyone who dares to assert that the courts lack the authority to engage in activist behavior is met with the moralistic smirk: "Then I suppose you would repeal Brown and return us to racial segregation?"

What Congress should have done many years ago is to pass a constitutional amendment banning forced racial segregation. Such an amendment would have been ratifiable by the late sixties, as the positive benefits of Brown became realized. The amendment should have been accompanied by a preamble stating that while the court's heart was in the right place in Brown, it exceeded its authority, and the amendment was thus necessary to constitutionalize the ban on segregation.

Many tyrannies get their start because someone uses brute force to do something good, and then is rewarded with enough power to do many things bad. Opponents of free speech rarely start off banning Shakespeare or George Will columns. They ban hateful racist speeches, or commercial political attack ads, or something people find irritating or even ugly. But once the ban is allowed, the precedent is set for great mischief.

The court itself is not our only problem. As the justices' "moral authority" grew in the wake of Brown, the other branches began deferring to them. Furthermore, most judicial assaults have been against state law, and states can't fight back. The Founding Fathers gave them little in the way of retaliatory power against the federal courts because those courts were never supposed to be striking down state laws willy-nilly in the first place. As for Congress, and situations such as the Massachusetts state legislature's response to the state court gay marriage ruling, legislators rarely stand up and fight for three reasons:

1) COWARDICE: The idea of the courts as the ultimate authority on law is now so engrained that many legislators simply lack the courage to fight.

2) EXPEDIENCY: Many legislators would rather defer controversial issues to the courts, since it alleviates them from having to vote yes or no on abortion, gay marriage, or other hot button issues.

3) DEVIOUSNESS: Many legislators are far to the left of their constituents. They wouldn't dare, for example, vote "yes" on a bill to legalize gay marriage since such a vote might lead to their defeat in the next election. But if a court orders gay marriage to be legalized, they can pretend to "personally" object to the ruling, while saying, "Alas, the court has ordered it, so we have no choice as legislators but to obey." The ruling allows them to pretend they aren't voting to permit gay marriage, but instead are voting to uphold a court ruling that they are "bound by law to uphold".

This road we're on won't come to a stop until we make up our mind to oppose judicial tyranny and force our legislators to fight back. I'm afraid I'm not optimistic. There are now millions of Americans who have "benefitted" from one judicially activist decision or another, so the court has created a constituency for its own misconduct.

Anyway, that's my opinion of the fix we're in. Some might disagree with my analysis, but please don't accuse me of advocating segregation because of my critique of Brown. I don't support segregation, but I do think many of our current problems with judicial activism can be traced to 1954.
6 posted on 12/21/2003 10:18:49 AM PST by puroresu
[ Post Reply | Private Reply | To 3 | View Replies]

Comment #7 Removed by Moderator

To: seamole
Impeachment of judges was meant to be the biggest check on their abuse of power. It should not be considered "Radical" or even out of the ordinary to use this power. But that is how it will be portayed by the media and defenders of these tyrants in black robes.
8 posted on 12/21/2003 4:18:26 PM PST by Burkeman1 ("If you see ten troubles comin down the road, nine will run into the ditch before they reach you")
[ Post Reply | Private Reply | To 7 | View Replies]

To: puroresu
EXCELLENT analysis! It's as good or even better than the original article that was posted.

Any ideas on how the past errors can be rectified at this point? The only way I know is using the ballot box, but even that isn't always effective because the people who run for office can many times appear to be men and women of integrity but cower once they arrive in Washington.
9 posted on 12/21/2003 4:37:31 PM PST by arasina
[ Post Reply | Private Reply | To 6 | View Replies]

To: seamole; Burkeman1; Little Bill
Thanks for the ping, seamole. I applaud the President for stating that the Massachusetts SJC over-reached. With prodding, perhaps the Governor and some legislators could be convinced to show a bit of backbone.

Say, have any of you looked into what Massachusetts Family Institute is doing?

10 posted on 12/22/2003 1:03:44 PM PST by NutCrackerBoy
[ Post Reply | Private Reply | To 7 | View Replies]

To: Holly_P
"Activist" is a word game. Tyranical outlaws is more accurate.

Most blackrobes have elevated themselves above any basis in law created through consent of the governed. Blackrobes have appointed themselves as secular high priests of this government, unconstrained by the very Ratified Constitution from which they derive any and all of the limited, temporary, lawful powers. Blackrobes say that they are constrained by stare decisis; old unConstitutional decisions must be followed despite the fact that such decisions are still unConstitutional?

The majority of leftist blackrobes are ruling with little basis in THE Law of the Land, but now integrating international law and EU policy, driving their political agendas beyond any basis in applicable American law, our law: our RATIFIED CONSTITUTION.

For 70 years, SCOTUS and its inferiors have undermined and ruled to nullify our specific limitations to governmental powers and our inconvenient Bill of Rights. Becaus ehtye say so does not make our ratified Constitution state anything other than what is written. The words and phrases mean what they proclaim, not what some blackrobes RULE.

The Rhenquist Court(s) have been the most damaging to our Ratified Constitution since FDR, but in their current conspiracies, these 5 to 6 old men and old women have defined themselves as enemies of our only Constitution. These few people rely on our Constitution for their position and all lawful powers, yet they eagerly bastardize meanings of specific powers granted to government, rights and powers reserved the The People or the Several States and nullify our civil rights our Bill of Rights and our 14th's "equal rights" again and again despite what our Constitution actually states to any who would read and heed the Law of our Land. The one true "controlling legal authority", even over blackrobes.

Most of our first 10 amendments have been overruled or ignored, especially as of late our 2nd, 4th, 5th, 6th, 7th, 8th, 9th, 10th and most recently the very 1st. "...Congress shall make no law abridging the freedom of speech..." has just been "interpreted" to mean except when the SCOTUS rules - because our corrupt politicians might be influenced by money in advertising before an election according to these blackrobed politicians - only because they say so? This is beyond nonsense and a violation of our Constitution.

SCOTUS has set the stage for the armload of kingship Executive Orders unConstitutionally dictating Martial Law as "Emergency Declarations".

Those in limited power in positions so designated by our Constitution have perverted our legal system to create unchallenged power, requiring bench originated kangeroo law to overturn our RATIFIED CONSTITUION's Republic.

This is sedition, committed by orders of the courts. Under color of law is the further insult to the American people.

Has every federal employee of ours forgotten or blown off their oath of office? Do they think that their gaming the system will go on without accountability? Do they think that martial law will provide them with unrestrained powers over others?

Blackrobes armed with assault gavels committing sedition will not stand. Without the lawful authority from our Ratified Constitution, these men and women are simply bullies. Once our government ceases to be ours, these people are no more than outlaws.
11 posted on 12/22/2003 8:45:14 PM PST by SevenDaysInMay (Federal judges and justices serve for periods of good behavior, not life. Article III sec. 1)
[ Post Reply | Private Reply | To 1 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794 is powered by software copyright 2000-2008 John Robinson