← Autodidact Archive · Original Dissent · kminta
Thread ID: 11500 | Posts: 2 | Started: 2003-12-17
2003-12-17 00:00 | User Profile
[B][URL=http://www.townhall.com/columnists/thomassowell/ts20031216.shtml]Courts without law[/URL][/B] [B]Thomas Sowell[/B] [B]December 16, 2003[/B]
Lawlessness usually conjures up images of a wild frontier or mobs in the streets. But the painful reality is that the supreme examples of lawlessness in our times are in the august and sedate chambers of the Supreme Court of the United States.
If you think the issue in the recent Supreme Court decision upholding campaign finance legislation is whether campaign finance reform is a good idea or a bad idea, then you have already surrendered the far more important and more fundamental idea of Constitutional government.
There is nothing in the Constitution of the United States which authorizes Congress to regulate what is said by whom, or under what conditions, in a political campaign. On the contrary, the Constitution says plainly, "Congress shall make no law" -- no law! -- "abridging the freedom of speech."
The merits or demerits of this particular law, restricting what you can say when, or how much money you can contribute to get your message out, are all beside the point. Just what part of "no law" don't the Supreme Court justices understand?
The sad -- indeed, tragic -- fact is that they understand completely. They just think that this legislation is a good idea and are not going to let the Constitution stand in their way.
Moreover, they know from experience that if they can snow us with huge amounts of pious rhetoric, saying the kinds of things that the mainstream media will echo, that their wilful exercise of power will go unchallenged. In short, the Constitution be damned, we're doing our own thing.
At least the people who engaged in wild west shootouts or lynch mob violence spared us the pretence that they were upholding the Constitution. Whatever horrors these lawless and murderous people might inflict at particular times and places, they never had the power to undermine the very basis of the government of the United States.
The U.S. Supreme Court does -- and is in the process of doing just that. Other courts, taking their cue from the top, have likewise behaved like little tin gods, imposing their own notions disguised as law.
One of the tragedies of our time, and a harbinger of future tragedies, is that court decisions at all levels have come to be judged by whether we agree or disagree with the policy that is upheld or overturned.
Recent controversies over gay marriage have been a classic example of failing to see the woods for the trees. The most fundamental issue is not gay marriage. The most fundamental issue is who is to decide whether or not to legalize gay marriage -- and all the other decisions that define a free, self-governing people, as distinguished from people living under dictators in black robes.
The political left is all for judicial activism, because courts can impose much of the liberal agenda that most elected officials are afraid to impose, such as racial quotas, gay marriage and driving religious expression underground.
Bitter and ugly fights over judicial nominees are one consequence of liberals' heavy dependence on judges to impose policies which elected officials dare not impose. Decent, honorable and highly qualified people like California Justice Janice Rogers Brown are smeared and lied about because they insist that what the Constitution says still matters.
Sadly, the idea that judges are to make social policy, not just enforce the Constitution and the statutes, has spread even among some conservative constituencies. The National Rifle Association, for example, attacked Justice Brown for upholding California's assault weapons ban.
The issue was not whether Justice Brown personally favored this ban or not. The issue was whether the state legislature had the right to impose such a ban. Since there is no right to bear arms in the California Constitution, and state judges are bound by federal courts' interpretation of that right in the federal Constitution, this decision was the only one to make.
We can't vote for federal judges but we can vote for those who appoint them and those who confirm them. We need to remember judges -- and the Constitution -- when we are in that voting booth, if we want our votes to continue to mean something.
é2003 Creators Syndicate, Inc.
2003-12-18 19:35 | User Profile
Sadly, the idea that judges are to make social policy, not just enforce the Constitution and the statutes, has spread even among some conservative constituencies. The National Rifle Association, for example, attacked Justice Brown for upholding California's assault weapons ban.
The issue was not whether Justice Brown personally favored this ban or not. The issue was whether the state legislature had the right to impose such a ban. Since there is no right to bear arms in the California Constitution, and state judges are bound by federal courts' interpretation of that right in the federal Constitution, this decision was the only one to make.
While I agree with the overall point of the article, Mr. Sowell is mistaken if he thinks that states have any legitimate authority to ban certain kinds of weapons.
Article VI of the federal Constitution provides that:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof and all Treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.
In other words, the federal Constitution -- including the Second Amendment -- trumps the authority of the individual states. That doesn't mean that all federal laws trump state laws, of course; only the federal Constitution is the supreme law. In fact, most of the federal laws currently on the books are blatantly unconstitutional in their own right.
Moreover, the right of individual self-defense is absolute regardless of what any state or federal Constitution says or doesn't say. One could argue that "rights" don't actually exist in reality; but if we adopt the view that citizens have no rights, then we need to accept that governments don't have any a priori right to govern. Any citizen who accepts limitations imposed by other mortal men on his right to bear assault weapons is a slave who deserves his yoke. Rights are only effective if one is willing to fight for them, even against impossible odds.