Adjudication and Legislation

Editor's note. This post was original written in May of this year, but was never published. Enjoy.

Perhaps a better title for the post would have been "why we need judges who won't legislate from the bench", but that just seemed a little too winded. This is an intense subject, full of confusing rhetoric and legal subtleties. Now, as we once again debate of the worthiness of Obama's next supreme court appointee, it is important that we understand what's at stake. True to form, Obama has tapped someone with an elite education and very little experience (sound familiar?). But instead of trying to debate the merits of Elena Kagan's qualifications, I would rather get to the heart of what's important here.

We all learned in middle school that our founding fathers wisely created three distinct branches of government, each having built in checks and balances to ensure none ever get too powerful. The Supreme Court's main purpose in all of this is to provide a final judgement for any case that arises under the Constitution. In a sense, they are the protectors of all the laws of the land, with the highest being the Constitution itself. We need good men and women who love the Constitution and are willing to impartially make judgements, void of any ideological premise, with the sole intent to uphold the Constitution and protect the rights of the people. Unfortunately, such men and women are hard to come by.

Instead of impartial judgement, we tend to see ideological decisions that set precedents for future law. This has turned our high court into a legislative body itself, capable of making rulings that fall outside the text of the Constitution. This is a huge problem. The balance of power has shifted to the courts, and the checks put in place have started to erode. The high courts are appointed, not elected. They serve for life. They can't be voted out. All this was done to ensure impartiality, but none of it works if they start stepping outside the boundary of power they were meant to be limited to.

Take, for example, the proposition 8 in California. This is a textbook example of court decided legislation. The people of California decided by majority vote that marriage is not a right, but rather a privilege which is defined as only one type of unity, that between one man and one woman. The courts of California, however, decided that such a law would be unconstitutional. And while the court has the right to do that, the only way that they can make such a ruling is if the rights of an individual or group of people, under the constitution, have been violated. In this case, the courts were declaring that marriage is indeed a fundamental, constitutionally protected right. The problem is that no where in the constitution does it say that. They effectively changed the law, denied the will of the people, and created a new set of rights outside the constitution. Doesn't that scare you?

Now, fortunately, this was not the Supreme Court. And in the end, the will of the people was confirmed (only after a 2nd vote, however). But the Supreme Court has a long history of making decisions that set precedents for future law. Some people are fine with this. To others, it is troubling. The difference boils down to how you interpret the constitution. It is pretty easy to pick it apart and warp in a way that justifies whatever position you want to take. But I don't think it is a good idea to take such a relativistic approach. The question shouldn't be: what do I think that means to me? Instead, it should be: what did this mean to the men who wrote it? A lot of people will disagree with me on that, but it is the only sure fire way we can look at the Constitution impartially and come to a mutual agreement despite our ideological differences.

If we let the courts get away with too much power, we will be sacrificing our rights and as a people our voice will be lost. We can't let this happen. We can't passively watch Obama or any other President appoint activist judges who are determined to impose their ideology upon the country. The fine line between adjudication and legislation is becoming thinner and more vague each year. And it is not just at the national level either. It starts with local judges abusing their power. Judges that we elect. Of course, if totalitarianism is your thing, then by all means stay the course.

Founding Father Quote of the Day

If [the legislature] will positively enact a thing to be done, the judges are not at liberty to reject it, for that were to set the judicial power above that of the legislature, which should be subversive of all government.

Sir William Blackstone
(Recognized authority on the establishment of American common law)

The Rich Man and His Money

A current hot button issue right now is the impending expiration of the Bush era tax cuts. The tax cuts in question were passed in two acts, one in 2001 and one in 2003, and both acts are to expire this year unless congress votes to extend them. The acts unilaterally lowered income tax rates for all Americans at all income brackets and simplified much of the tax code. President Obama, along with the majority of democratic lawmakers, has argued in favor of extending those tax cuts... that is to everyone except the wealthy.

And so we return to that old, tired argument that goes something like this: The wealthy have more money than they know what do with, so they can afford to pay higher taxes. Other variants of this argument include: It just isn't fair that they make that much more money than everyone else so raising their taxes is the right thing to do, and: All that extra money they have isn't benefiting anyone but themselves, let's use to help those in need.

I would like to propose a simple thought exercise. Ask yourself this, what do people who have more money than they need spend it on? I think we could create three broad categories. First, luxury items. This category could include anything from a fancy car to expensive art to a golf club membership. Second, charity. And third, investments. Now, let's suppose that we raise taxes on the ultra wealthy. While they will surely still be wealthy, the tax increases will inevitably leave them with some measure of less wealth, right? So where would the money (that now goes to Uncle Sam) have gone?

First, let's suppose the that wealthy cut back on their luxury item spending. Maybe they can only afford two Ferrari's instead of three now. Who suffers because of this? Surely not the wealthy person. They can survive just fine with two Ferrari's, right? But what about the factory workers who assemble the Ferrari's? What if all of a sudden fewer orders are coming in? Either lay-offs or pay cuts would have to result. What about the truck driver who transports the car? What about the people who collect the raw materials that make up the car? All of a sudden we start to see the big picture and realize how many non wealthy people depend on that the one wealthy person being willing to buy their third Ferrari. And so the little guy on the bottom ends up getting crushed because Uncle Sam robs the wealthy guy on top.

Ok, now let's suppose instead that the wealthy cut back on their charitable donations. After all, they are greedy and evil, right? It shouldn't take much to understand how this could potentially effect the little guy. We absolutely need non-profit organizations. They are the epitome of everything that is great about this country. They are more efficient and effective than the bureaucratic nightmare that is government welfare. They are nimble and responsive to emergencies and the changing needs of society. They are dynamic and forward thinking, pushing to solve tomorrow's problems today. I couldn't think of a more direct way to hurt those who are at the bottom than buy reducing charitable donations.

Finally, let's assume that the wealthy aren't that evil and would still be as generous as ever. Let's also assume that they just couldn't survive with out all three of those Ferrari's. What ends up suffering, then? Investment. Historically, this is the category that is impacted the most by a weak economy and high tax rates. Believe it or not, wealthy people don't sleep on beds made of their cash. Instead they invest all that extra money. Where does that invested cash go? Maybe to start a new venture that has the possibility of creating hundreds of jobs. Maybe to fund research that has the possibility of radically improving our lives. Maybe to support a company that puts out products that you use and love everyday. You see, when investment goes down jobs are harder to create, research is harder to fund, and innovation becomes just too risky. So yes, the wealthy may be fine, but the rest of certainly won't be.

What is the point of all of this? To point out that all the money the ultra wealthy have isn't just statically collecting in their pockets. It's doing something. And that something may be to provide you with a job, let you get a mortgage on your first home, or even make it possible for your loved one to get the life saving treatment they need. Remember that the next time you are tempted to fall into the philosophical trap perpetuated by Obama and the liberals that the wealthy can afford higher taxes.

I know, I know. You have one more argument to make: but the money that gets taxed from the wealthy ends up helping the little guy anyway. Does it? Are you sure? To me that is like saying that shunting perfectly good oil out of a running car engine, processing it through a colossal factory that does nothing but corrode and waste it, and then injecting it back into that same car engine is somehow going to help the car perform better than if you just left it alone in the first place. Trust me, it won't.

What do you think?

Founding Father quote of the day

The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, and both should be checks upon that.

John Adams, Thoughts on Government, 1776

The Constitution and an old piece of paper

I had a conversation with a friend about the importance of our Constitution the other day. It didn't take long for him to begin to criticize our founding fathers for their character flaws and moral shortcomings. It wasn't that he thought the Constitution wasn't important, he simply reasoned that we shouldn't be so grounded in something so out of date and potentially incapable of solving today's problems. We should be willing to progress beyond the Constitution, he said. He then used his criticism of our founding fathers to scoff at the notion that we should revere the Constitution as something sacred.

Somewhere, a progressive liberal smiled.

Is the Constitution really just an old piece of paper, drafted for a different people in a different time? For those of us who do revere it, are we really being held back from some better future, one that has evolved past our founding father's vision? Should we view the Constitution as a timeless anchor, rooted in unchangeable principles or a breathable document, open to free interpretation? These are important questions. It is abundantly clear that our country's education system believes it has an answer to those questions. For a long time now our schools have worked very hard to destroy the reputation of our founding fathers. You see, the educators understand that if you can discredit the messenger, you can discredit the message. And if you can discredit the message, you can replace it with whatever one you want.

(But it's a one way street. Don't believe me? Just try to discredit Martin Luther King Jr's accomplishments by pointing out his moral shortcomings. See how far that gets you.)

The larger picture here, the one that extends beyond our schools, is progressivism. It is a plague that has destroyed more than one society over the course of human history, and it has been actively working towards our destruction for some time. Progressives understand that the biggest obstacle standing in the way of them achieving their radical transformation of this country is our Constitution. So, they have devised a very strategic plan. It involves a subtle attack, a slow whittling away of the reputation of everyone involved in its conception. It involves asking questions that attempt to out date the Constitution, seeking to prove its irrelevancy and inability to hold timeless value.

Here is a classic argument: The Constitution was drafted in a time where the problems of today's society would have been impossible to foresee, and therefore impossible to solve. We have to understand that the Constitution serves a purpose but we can't expect it to always be relevant. And here is another, very common one: The Constitution was designed to evolve and change over the years. A process for amendments was specifically included, and this proves that it should be seen as a breathable document, open for interpretation.

The problem is that both of these arguments (and others like them) fail to recognize that you can hold to a constant set of principles and yet apply them in very different ways depending on the situation. But progressives aren't interested in the core principles that create the foundation for the Constitution (you know, like personal liberty and limited government). That is why you will never see them try to amend the Constitution. Adding amendments could never serve their purposes because it would be admitting that the constitution is relevant and it would reaffirm the principles upon which the Constitution rests.

In the end, the Constitution isn't about dealing with events, it is about dealing with human nature. It isn't a handbook for solving problems, it is a guide that lays forth a specific set of principles. The scary thing is, we used to be fairly united as a country around those principles and disagreements would come only with their application, but now we are now fighting against an enemy that wants nothing to do with anything the Constitution stands for.

So returning to my friend, I say that the very fact that so many imperfect men with differing opinions were able to come together and draft a document that has withstood the test of time, become a standard by which all other countries' constitutions are compared to, and allowed thirteen poor colonies to become the greatest and most prosperous country in the planet means something. I think the fact that it has survived civil war, world war, the threat of nuclear destruction and the ongoing threat of terrorism means something. I think the fact that it has survived the industrial revolution, the high tech revolution, and multiple civil movements that have redefined our society means something. I think the fact that is has survived all of this and still stands strong is a pretty good indicator that founding fathers had a little outside help and perhaps a wider vision than we realize. To presume that we somehow know better is naive and arrogant. The Constitution is not just an old piece of paper, it is the very secret to our success. To revere it as anything less than sacred, and the principles for which it stands as anything less than constant and immovable, would be to simply pave the path to our own destruction.

Founding Father quote of the day

I join cordially in admiring and revering the Constitution of the United States, the result of the collected wisdom of our country. That wisdom has committed to us the important task of proving by example that a government, if organized in all its parts on the Representative principle unadulterated by the infusion of spurious elements, if founded, not in the fears & follies of man, but on his reason, on his sense of right, on the predominance of the social over his dissocial passions, may be so free as to restrain him in no moral right, and so firm as to protect him from every moral wrong.

Thomas Jefferson, letter to Amos Marsh, November 20, 1801

Illegal Immigration and Citizenship

Arizona just passed one of the most controversial immigration laws our country has ever seen. A few are outraged, most are relieved. At the heart of this law, and the larger debate which it addresses, is a simple question: where do we draw the line? Arizona is the nation's kidnapping capital. The drug, weapon, and human smuggling cartels are becoming increasingly bold and dangerous. And while we could debate over the economic impact (good or bad) of illegal immigrants, the reality is they are enjoying freedoms and protections that they have not earned while countless others wait patiently in line for their chance to legally enter this great country. These are real problems. They are not going away and they are not getting better. These problems are also difficult to tackle because it would seem that our desire to be a compassionate people is being pitted against principles of justice.

No decent human being can look upon the pitiful plight of a desperate family risking everything to cross the border, even illegally, in the hopes of finding something better than what was left behind without feeling sympathetic. And yet, by failing to secure our border and intentionally turning a blind eye to those who manage to make their way over illegally, we have created a black market culture that shortchanges these families. Families, who would otherwise become industrious, law abiding Americans, have found a short cut they don't believe they can afford not to take. But this short cut, one that we have willing provided, never allows them to fully assimilate into our country. It doesn't encourage them to diligently learn our language and adapt to our culture. And it rarely provides the opportunity for a real American dream.

This new law passed in Arizona, contrary to what some think, is not racist. It is not draconian, oppressive, heartless or inhumane. It is not "misguided", as President Obama called it. It simply takes a federal law and reaffirms it as a state law, thus giving the local authorities the ability to enforce the same laws that our federal government has ignored. Let's get some facts straight. The law specifically prohibits officers from stopping any one on the sole bases of race or origin. Officers must have a "reasonable suspicion" that a person is an illegal immigrant using established patterns of behavior before they can ask for proof of citizenship. The idea that Hispanic Americans will be randomly harassed and therefore will now live in a perpetual state fear is absurd. If asked, almost ANY form of ID will be accepted to prove citizenship. This includes drivers licences and social security cards. On top of that, even if you can't provide proof of citizenship, the officer has an obligation to first look you up on computer records that would potentially indicate that you are, indeed, American. Anyone arrested for a crime will now need to prove they are American citizens before being released, simple. This new law isn't harsh, it is undiluted common sense!

One of the most interesting developments with this new law has been the extreme reaction from those who oppose the law, mainly coming from the liberal left. Violence, vandalism, and hatred have defined protests large and small. And the main stream media, which has relentlessly hounded the overwhelmingly peaceful tea parties, looking for any trace of hate or violence so they could fabricate images of unhinged, hateful loons has all but ignored the outrageous antics of these, apparently justified, protesters. The double standard is glaringly obvious and terribly disturbing. It would seem that violence and hate are acceptable to the liberal left as long as you are standing up for what they believe in.

Having family in Arizona, I am keenly aware of the legitimate fears they have of an unprotected border and a law enforcement completely incapable of doing anything about it. Perhaps more than anything this new law sends a clear and unmistakable message to our federal government from the people of Arizona: if you don't take care of these problems, we will. Good for them. I don't believe that adhering to justice requires a sacrifice of compassion. Where we have laws, they must be enforced! Is it not the very principle purpose of government to protect us? If we aren't able to control who enters our country, and if we aren't able to do anything about those who are here uninvited, what is purpose of having sovereignty in the first place? And maybe if we do things right, if we enforce the laws and protect our borders, just maybe those desperate families will skip the shortcuts, make the necessary effort to get here the right way, and find an American dream waiting for them to enjoy. And when they do, we will be here with arms wide open to accept them.

Found Father quote of the day

…It is no doubt very desirable that we should hold out as many inducements as possible for the worthy part of mankind to come and settle amongst us, and throw their fortunes into a common lot with ours ... and those who acquire the rights of citizenship, without adding to the strength or wealth of the community are not the people we are in want of.

James Madison