The Most Basic Issue

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This column by Thomas Sowell highlights what I think is a very important concept. As he puts it:

"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."

(Excerpt)

"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...

...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." (end excerpt)

http://www.townhall.com/columnists/t...20031216.shtml


I think Sowell makes an extremely important point. There are good reasons why legislators make laws, and judges uphold those laws (and uphold the Constitution, our most important framework of laws). Judges are not constitutionally empowered to make laws. That division is part of the very basis of our system of government with its 3 branches--legislative, judicial, and executive--which separation of powers is essential to the checks and balances which protect our most basic rights and freedoms. When judges take law-making into their own hands through judicial activism, they undermine the very basis of our free society, regardless of whether the outcome of that activism turns out to be good or bad with regard the particular issue at hand.