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.

[elwoodblues]

Do you really think this article isn't a prime example of the very "tragedy of our time" that he denounces?

The article begins by stating that "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."

It then misleads readers into thinking that the US Supreme Court made a recent decision on gay marriage. This is simply false. The recent gay marriage decision was decided by a State Supreme Court interpreting a State Constitution. "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 as good conservatives know, the fundamental issue is that this is a state issue, not a federal one. The gay marriage decision is a great (small federal government) example of the system working --- the state decided/interpreted the state constitution.

[ QUOTE ]
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.

[/ QUOTE ]
Again, this is simply a specious argument. The writer wants you to believe that the courts are "imposing" these movements. The facts bear out otherwise:

Racial Quotas --- existed as a matter of policy in schools, workplaces, etc. The court has never required quotas. In fact, the court has specifically rejected the use of "quotas" despite what the popular belief is.

Gay Marriage: Again, the court was not making up law out of whole-cloth as the article suggests, it was interpreting the Massachusetts constitution, which provides (among other things) that:

[ QUOTE ]
"All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin."


[/ QUOTE ]

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Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people; and not for the profit, honor, or private interest of any one man, family or class of men

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In fact, the Massachusetts Constitution gives the court great power in interpreting laws:

[ QUOTE ]
full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this Search Term Begin constitution Search Term End , as they shall judge to be for the good and welfare of this Commonwealth.

[/ QUOTE ]

Driving Religious Expression Underground: The court has done nothing of the sort (and the article provides absolutely not justification for this assertion). The court has not stated anything about the private expression of religious faith, nor the public expression of that faith insofar as "public" means "out in public" as opposed to an act of the state. Part of the court's (US Supreme Court) charter is to interpret the language of the constitution. Some argue that the language of the constitution is absolutely clear, I think there are lots of gray areas. One of the gray areas deals with the establishment of religion and the extent to which the state's support of religious activity "establishes" the religion. The court is interpreting that meaning. Apparently the writer just disagrees with the court's interpretation.

~elwood

[Kurn, son of Mogh]

I think Sowell makes an extremely important point. There are good reasons why legislators make laws, and judges uphold those laws

Judges aren't just there to "uphold" laws. They are there to determine whether or not those laws conform to the guidelines of the constitution. Sometimes the Constitution is vague.

[MMMMMM]

So you think it is OK that the US Supreme Court can forbid you from taking out an ad expressing your views when it is close to election time?

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Of course. And I think the Constitution is pretty damn clear when it says: "Congress shall make no law abridging the freedom of speech." Yet the majority of the US Supreme Court seems to think other concerns are more important than that VERY clear sentence. Since Congress cannot make any such law, the Court apparently will. You can no longer freely express your opinions immediately prior to an election. If that doesn't give even the most liberal leftist grounds for worry, nothing will.

[nicky g]

Sure you can; just not through advertising.

[adios]

Much talk about a Constitutional Amendment basically banning gay marriage. I don't think that will get any more action than lip service (thankfully IMO).

Democrat Proposes Anti-Gay Marriage Constitutional Amendment

Democrat Proposes Anti-Gay Marriage Constitutional Amendment
Mississippi Democrat "Lead Sponsor" On Measure Not Expected to Advance

May 15, 2002


(WASHINGTON) A coalition of largely African American leaders joined a Mississippi Democratic Member of Congress today to announce the introduction of a constitutional amendment to ban same-sex marriage.

Congressman Ronnie Shows (D-MS) joined leaders of the "Alliance for Marriage" at a Capitol Hill press conference to announce the introduction at its lead sponsor. The group boasted of "strong bi-partisan support" for the measure, however it was announced that the measure has six co-sponsors -- three Democrats and three Republicans.

In addition to Shows, the measure is co-sponsored by Congressman Ralph Hall (D-TX), Congressman David Phelphs (D-IL), Congresswoman Sue Myrick (R-NC), Congresswoman Jo Ann Davis (R-VA) and Congressman Chris Cannon (R-UT).

"This measure should not be taken seriously by Members of Congress of either party," said Rich Tafel, executive director of Log Cabin Republicans. "It is unlikely to advance in this or any Congress, nor should it be allowed to advance. It is merely a fundraising ploy by people on the extreme end of the political spectrum at the expense of more serious and important issues facing our nation."

A constitutional amendment requires 2/3 passage in both the House and Senate, and must be ratified by 3/4 of the states, an extremely rare event, and unlikely prospect for this measure. Democrats and Republicans expressed opposition to it in 2001 when the "Alliance for Marriage" began an internet campaign to promote its efforts.

On this site I found what I thought was a good counter arguement to such an amendment.

Log Cabin Denounces Federal Marriage Amendment


November 26, 2003


(Washington) Log Cabin Republicans denounce the introduction of the Federal Marriage Amendment in the United States Senate on Tuesday.

"Across America families are gathering to celebrate Thanksgiving, while on Capital Hill some members of the United States Senate conspire to marginalize part of the American family," said Log Cabin Republican executive director Patrick Guerriero.

On Tuesday, a Constitutional amendment that would codify discrimination against tax-paying gay and lesbian Americans was introduced in the United States Senate by Republican Senators Allard (CO), Sessions (AL) and Brownback (KS).

"The Constitution is a masterpiece of liberty and freedom. Corrupting this precious document to score cheap political points is frankly obscene. Writing discrimination into the Constitution is an affront to everything our founding fathers stood for," continued Guerriero.

"True conservatives would never alter our Constitution for political purposes. As conservative Republicans, Log Cabin members across our nation are shocked that these senators would make such a brazen attack on states' rights. On his own web site, Senator Allard brags about his support of state's rights, yet when it comes to discriminating against loving gay and lesbian families, he suddenly feels compelled to have sweeping federal action. Senator Allard's attack on gay and lesbian families is disingenuous and intellectually inconsistent," added Mark Mead, Log Cabin director of public affairs.

"The American public wants our elected representatives to work with President Bush to win the war on terror, not to wage a culture war. They should maintain their focus on expanding our economic recovery, creating more jobs and supporting our armed forces, not permanently marring our sacred Constitution," said Guerriero.

And who are Log Cabin Republicans?

Log Cabin Republicans is the nation's largest gay and lesbian Republican organization, with state and local chapters nationwide, a full-time national office and a federal political action committee.

Imagine that Gay and Lesbian Republicans who endorse conservative ideals.

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nicky,

That is a restriction on the freedom of speech. Cut and dried.

[elwoodblues]

Not to split hairs, but you can try to blame the Supreme Court all you want, but it was Congress that created the law.

I haven't yet read the decision, so I don't know the legal basis of the opinion. I'll try to get to it later this week with a more informed response.

[nicky g]

Perhaps. There are many restrictions on advertising. There are also alternatives - eg providing all serious candidates with a platform instead, wich allows them all freedom of speech. Creating a market in political information effectively restricts poorer candidates' freedom of speech.