Connect with us

Opinions

Why Do We Have Judges?

Published

on

With the Democrats in full scream over the nomination of Brett Kavanaugh to the Supreme Court, it’s worthwhile to consider just why we have courts and judges.

The earliest record of judges is in the story of the Exodus. Moses, the prophet and leader of Israel, “judged between a man and his neighbor, and made known the statutes of God and His laws.” (Exod 18:16 NAS) He was overworked, since there were many disputes. At the urging of his father-in-law, Moses appointed “able men who fear God, men of truth, those who hate dishonest gain” (Exod 18:21 NAS) as judges for these minor disputes.

These judges applied God’s laws to the disputes brought to them. This required absolute loyalty to the law and the truth (they “feared God”). They were also supposed to avoid accepting bribes. In short, they were the model of what we should expect a judge to be.

It took a long time to get from Moses to modern courts and judges. Our current system started under Henry VIII in 1178, when the king appointed five members of his household to “hear complaints and do right.” Over time, judges became more educated, and laws enacted by Parliament became a firm standard for their decisions. Even the King was bound by the law.

In the 17th century, it became clear that it was necessary to forcibly separate the functions of making law, executing law, and adjudicating disputes under the law. If the King was able to make law by decree, carry out laws he decreed, and remove judges at will, the King was the law. He could rule with a pen and a phone.

The three independent functions of government became our American separation of powers doctrine. Congress writes the laws, the President makes sure that the laws are “faithfully executed,” and the Courts apply the laws to disputes. Within that structure, we added one key element: the Constitution.

The Constitution is our highest law, and is the standard by which all other laws must be measured. A law contrary to any part of the Constitution is unconstitutional, and can properly be ignored. The question is, “By what standard do we assess constitutionality?”

The Left pushes a theory called “the living Constitution.” That is, the Constitution is subject to change as society changes, without any need for the inconvenience of going through the amendment process. As the late Justice Brennan said, judges must “give meaning” to the Constitution, implying that it has no meaning until the Court declares it. The appeal of this view is that it responds to political pressure. It turns the Courts into what the Wall Street Journal calls the Left’s “preferred legislature.”

The Right prefers an approach that is variously called “originalism” or “textualism.” That is, the Constitution is a document that had a very specific meaning when it was adopted. If we wish to apply it properly, we must understand what its text meant to the Framers. If we wish to change it, we must go through the difficult process of amending it.

That tedious process makes amending the Constitution really hard. Six amendments that were submitted to the states, including one still pending from 1789, haven’t made it. Even with a great popular push, the Equal Rights Amendment didn’t make it. This difficulty stands directly in the path to fundamentally transforming America the way the Left wants to do. So they love it when judges adopt legal theories that let them ignore the original understanding of the law. And that brings us to our next question.

What is “the Law?” Conceptually, the law is a set of principles and statutes that allow us to have an orderly society. In short, if you act in a proper manner, your actions will be lawful. But to know what is proper, you must have public standards of behavior that do not change from day to day. The easiest way for this to happen is to have recorded laws. These are specific, written documents that describe what is and is not acceptable. Short of such statutes, all of us look to what “The Average Reasonable Person” might do. Common law embodies this TARP standard, which often makes its way into written statutes.

All of us depend on the fundamental premise that law is reliably fixed. It doesn’t change when the wind blows. It isn’t necessary to bring policy preferences to the process the way a “wise Latina” might. The text of the law tells us how to (not) behave. Questions only come when the text is unclear.

Suppose that the law is whatever a particular judge decides it is. If I’m called before a racist judge because my trash talking on the basketball court offended someone, I might expect to experience harsh penalties. If the judge is a conciliator, he might take the two of us out to lunch and expect us to “get over it.” How should I know how to behave?

But if I’m taken before a judge who reads the law carefully, I’ll receive whatever treatment the law regards as just. Thus, when Congress passed mandatory sentences for crack cocaine possession that were ten times those for powder cocaine, judges who hated the law found themselves imposing the harsh sentences on lots of young black men. No “wise Latina” could get around the plain text of the statute.

The remedy for this inequity in cocaine sentencing could not properly come from the bench. Our separation of powers does not allow a judge to rewrite the law. No executive with “a pen and a phone” can do it, either. Only the legislature has the power to change laws.

How does a judge determine what a law means? The first step is to read the text. Most of the time, that’s all that’s needed. But what if the language is unclear? The President may be impeached for “high crimes and misdemeanors.” Does this term of art mean that the President must have committed an indictable offense under criminal law? President Clinton perjured himself. That was indictable and impeachable. But is Tweeting personal insults impeachable? Alan Dershowitz argues that it is not. Even researching what the Framers thought leaves us with questions.

Most laws aren’t that big a problem. But administrative law-making is a real problem. Congress has become fond of passing vague laws that will say “XYZ agency shall implement this by regulation.” And XYZ agency goes to town. Since 1984 (George Orwell, can you hear us?) the Supreme Court has let them expand their powers through a doctrine called “Chevron Deference” (Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984)). The Supreme Court declared that if an agency was not unreasonable in its interpretations of a statute, its rulings should be accepted by the Courts.

As Judge Cavanaugh notes, Chevron encourages agencies “to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.” “Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” Administrative agencies have used it to make rules that stretch the law to the breaking point. A classic is the “Waters of the USA” rule, where a farmer who cleared brush out of a ditch was fined for “destroying wetlands.” But the statute only addresses “navigable waters.” The EPA had become a super-legislature, an unaccountable fourth branch of government that cannot be found in the Constitution.

Should the farmer have expected that his fully reasonable act of maintaining his farm would be illegal? Of course not. But when the Courts accept interpretations that fall outside the text and meaning of the law as enacted, the rule of law vanishes. Policy preferences now create “law” that no one can know and punishes even the most law-abiding.

But this is exactly what the Left demands. They have been unable to get their policy preferences translated into law. So they demand that they be allowed to transform the law to match their policy preferences. Yet at the same time, they demand that a judge be bound firmly by stare decisis.

This Latin phrase means “let the decision stand.” It says that once a question has been decided by the Courts, that decision should govern how we understand the law. The Left demands that stare decisis is crucial to a judge. And why should we argue? Stare decisis creates a stable understanding of the law so an ordinary person can know how to act. But the Left only wants stare decisis in certain areas.

Roe v. Wade is sacrosanct. No judge should ever, ever, ever consider overturning it. But where in the Constitution do we find Roe’s “right to privacy?” It’s not there. And how does a “right to privacy” excuse the destruction of unborn life? Those are real questions that aren’t answered in Roe.

But what about Dred Scott, which protected slavery, or Korematsu which legalized FDR’s imprisonment of US citizens of Japanese heritage? Those decisions were stare decesis and overturned, with nary a peep from the Left. But when Janus overturned Abood, the Left went into full cry. Why? Janus took away money that unions could use to support Democrats.

Let’s put this in simple, declarative language. The Left supports a stable set of laws when it suits their policy purposes. Stare decesis is wonderful when it protects a Leftist legal standard. But when the clear text and meaning of the Constitution won’t let them do what they want, suddenly we have to have a “living Constitution.”

Americans must have a set of laws they can understand. Those laws cannot change because some bureaucrat or judge wants a different outcome. There is a prescribed way for laws to be changed. Laws must be rewritten by Congress or the Constitution amended by the States. There is no other way for ordinary citizens to be able to obey the law.

It is crucial for judges to protect the law as written. Anything else leads to the destruction of civil order and ultimately destroys America. No judges should be allowed near any court if they do not faithfully apply the text of the law to the questions before them. Fortunately, Judge Cavanaugh has shown himself to be fully committed to the law. He deserves our support.

Facebook Comments
Advertisement
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Culture and Religion

17 years later, Paul Washer’s shocking message still holds true

Published

on

17 years later Paul Washers shocking message still holds true

In 2002, Pastor Paul Washer delivered a message to around 5,000 young people. It has become one of the fiery Southern Baptist’s mostly widely-heard sermons because in it, we hear a very disturbing reality to most who proclaim to be Christians. Some simply aren’t doing it right.

He’s been criticized for the sermon. Some say he’s making it too complicated. Others say he’s scaring people away from the faith by making it seem too difficult. But this teaching is based on one of the most important teachings of Jesus Christ in all the Bible:

Matthew 7:13-27

13 Enter ye in at the strait gate: for wide is the gate, and broad is the way, that leadeth to destruction, and many there be which go in thereat:

14 Because strait is the gate, and narrow is the way, which leadeth unto life, and few there be that find it.

15 Beware of false prophets, which come to you in sheep’s clothing, but inwardly they are ravening wolves.

16 Ye shall know them by their fruits. Do men gather grapes of thorns, or figs of thistles?

17 Even so every good tree bringeth forth good fruit; but a corrupt tree bringeth forth evil fruit.

18 A good tree cannot bring forth evil fruit, neither can a corrupt tree bring forth good fruit.

19 Every tree that bringeth not forth good fruit is hewn down, and cast into the fire.

20 Wherefore by their fruits ye shall know them.

21 Not every one that saith unto me, Lord, Lord, shall enter into the kingdom of heaven; but he that doeth the will of my Father which is in heaven.

22 Many will say to me in that day, Lord, Lord, have we not prophesied in thy name? and in thy name have cast out devils? and in thy name done many wonderful works?

23 And then will I profess unto them, I never knew you: depart from me, ye that work iniquity.

24 Therefore whosoever heareth these sayings of mine, and doeth them, I will liken him unto a wise man, which built his house upon a rock:

25 And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell not: for it was founded upon a rock.

26 And every one that heareth these sayings of mine, and doeth them not, shall be likened unto a foolish man, which built his house upon the sand:

27 And the rain descended, and the floods came, and the winds blew, and beat upon that house; and it fell: and great was the fall of it.

I’ve heard many teach on these verses and I’ve taught myself on the strait and narrow. It’s frightening to some because it was intended to be, and Washer’s declarations to these impressionable young people is clear. But it wasn’t nice. It wasn’t kind. It wasn’t inclusive. It didn’t fit in with today’s version of common pastoral messages.

The need for constant repentance and ongoing belief must never be understated.

Sometimes, the need to be “nice” from the pulpit must be replaced by the true need to be honest. That’s what Washer does in this famous teaching. I strongly encourage everyone to spend an hour hearing it.

Facebook Comments
Continue Reading

Conservatism

Why Tomi Lahren’s abortion view harms American conservatism

Published

on

Why Tomi Lahrens abortion view harms American conservatism

Democrats are unambiguous and united in their view of abortion. It wasn’t always this way. As recently as a decade ago, there were a good number of pro-life Democrats winning elections and expressing their views as pundits.

Today, they don’t exist.

Republicans aren’t so repulsed by the pro-abortion people in their midst. It’s understandable that as a party that’s less focused on individual issues, one can be a Republican without checking off all the various boxes. This is fine. What’s not fine is for breaks in the ranks of conservatives. There are certain things that must remain universal among those who claim to embrace conservatism, especially among those who speak for conservatives.

Fox Nation’s Tomi Lahren is one of them. She claims to be a conservative, but she’s pro-choice. That fact, by itself, is understandable because the issue is a polarizing one in which people can be swayed to one side based on personal experience. It’s not like taxes which warrant universal scorn from conservatives. There are gun-toting, tax-hating, pro-choice conservatives.

But there’s a bigger problem with Lahren’s perspective. She’s not just attacking the Alabama abortion bill and pro-life perspectives in general. She’s doing so with an argument that flies in the face of reality.

Do we think government is the answer? No. In fact, one of the most appealing parts about the Alabama abortion bill is that it represents the first true opportunity for the Supreme Court to overturn Roe v. Wade. When it reaches the Supreme Court (and it almost certainly will) it gives us the first glimpse of how the current makeup of the court will react. In fact, the makeup of the court could actually be better if one of the left-leaning Justices retires soon.

Once Roe v. Wade is out of the way, we can finally express the truly conservative aspect of federalism that should have never been taken away – the states’ rights to determine their own healthcare laws.

If Tomi Lahren doesn’t like the abortion ban, that’s fine. Her choice. But to defend her choice by insinuating a challenge to Roe v. Wade is somehow an attack on limited-government tenets is false and harms conservatism.

Facebook Comments
Continue Reading

Guns and Crime

Thomas Massie exposes the many problems with Red Flag Gun Laws

Published

on

Thomas Massie exposes the many problems with Red Flag Gun Laws

Representative Thomas Massie (R-KY) has been a staunch proponent of the 2nd Amendment throughout his career in Washington DC. This makes him an opponent to Red Flag Gun Laws which are spreading across the states. Colorado recently passed their version, bringing the total up to 15.

As we’ve documented numerous times, Red Flag Gun Laws are a direct attack on the 2nd and 4th Amendments. Depending on the version of the law, citizens can have their firearms forcibly removed from them by law enforcement when a judge decrees they may be a threat to themselves or others based on requests by people who know the victim. It’s important to understand that these laws are not based on anyone committing a crime. They are based on a feeling that someone may commit a crime.

It’s like the movie Minority Report, only without psychics. Gun owners’ liberties can be encroached based on the government’s “future crimes division.”

In this video, Massey gets to the heart of the matter by talking to Colorado Weld County Sheriff Steve Reams and Dr. John R. Lott of Crime Prevention Research Center. This is an important video for #2A proponents across the nation.

Facebook Comments
Continue Reading

Facebook

Trending