Monday, July 14, 2008

Judicial Activism

We get the same thing up here in Canada, though it's usually left alone, and there's not quite the hue and cry that seems to come with controversial judicial decisions on touchy subjects. In fact, there is little enthusiasm from most of the country to revisit an issue once the courts have decided the way the law ought to work. What usually happens is that Parliament and the Senate play catch-up if the court is right, and tighten the legislation if the court is wrong. The feds came back and legalized gay marriage after two provincial (might have been three) supreme courts ruled the ban violated the charter. This essentially ratified the courts' decisions federally, and all provinces had to follow suit afterwards. Occasionally, as with abortion, the courts, and the House simply ignore it once the decision is made. As such, there is no law in Canada regarding abortion, except such laws that govern medical practice already.

In the States, though, there's a lot of noise about Judges legislating from the bench. Part of it is due to the fact that the SCOTUS has four liberals and four conservatives on the bench, and one waffly swing vote. The US is one judicial appointment from reversing abortion law and kareening wildly towards a blurry separation of church and state. This is what will likely happen if McCain wins the presidency. You've been warned.

Perhaps not so oddly, it's conservatives that seem to have the most problems with "activist judges" (it's a conservative buzzword, even though it's actually two words), and our funny little friend Brannon Howse is no exception. He was the one obsessed with GAY SEX. I'd like to tell you about the latest panic-inducing screed by this charming homophobe.

The course of action by our judiciary is no innocent drift in legal interpretation. The judges’ unconstitutional moves have been calculated by a few to thrust their will upon Americans while the U.S. Congress has been asleep at the switch, seemingly unaware that the legislators’ very reason for existence is being chipped away.
Actually, US Congress is ignoring a hell of a lot of stuff, but the Supreme Court is not one of them. If I'm not mistaken, there are three separate branches of government, and the greatest threat to Congress' contitutionally prescribed authority is not coming from the judges. He's right that they are asleep at the switch, though, but you know what they say about stopped clocks...

Benjamin Cardozo, appointed to the U.S. Supreme Court in 1932, proudly proclaimed a belief in his right to usurp powers of the U.S. Congress and to violate the check-and-balance separations of the U.S. Constitution: “I take judge-made law as one of the existing realities of life.”1
Umm, it is.
Cardozo not only held the U.S. Constitution and U.S. Congress in contempt; he saw little purpose for people of faith—which includes most Americans—who want to apply a moral law as foundation for the legal process: “If there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or the moralist.”
And really, this is easily the gravest error that Howse could make. The job of the judicial branch has nothing at all to do with morality. It is concerned with laws. It's funny like that. And, it can only be concerned with the laws of the state (I think there's an oath, or something, and it's probably to god), since it is the state which governs the country, and the people which govern the state.

Only in wacky countries like Canada is god even mentioned, and even here he's not consulted, his ass is kissed and he's dismissed. Howse is confused, like many members of the religious right, and it's really frustrating. Men make man-made laws (pardon the sexist language, I just like the way it sounds), and it's likely that men make god's laws, too. But all (or at least most) men agree with most of the man-made laws, and god's laws are various and sundry. And that's just Abraham's god. When other gods get involved, it gets even uglier.

Justice Cardozo was not the first to sound this theme. In 1907, Charles Evans Hughes, who would later become chief justice of the U.S. Supreme Court, declared, “We are under a Constitution, but the Constitution is what the judges say it is.”3
So clearly this is urgent.

How can judges fulfill their sworn oath to defend and protect the U.S. Constitution while helping themselves to large portions of unconstitutional power and authority? How can they uphold the U.S. Constitution when they often don’t even consider the Constitution when rendering decisions? Or how can federal judges claim to fulfill their sworn duty when the majority of federal judges have endeavored to replace the U.S. Constitution with a different judicial standard?
Howse is really all over the place here. He rips into the judges for enforcing the law of the land, and then claims they don't. How many people caught that? Please raise your hands. This is a bait and switch, children. Keep your eyes open. He'll do it again.

The separation of power among the three branches of our government—executive, judicial, and legislative—was designed to safeguard our nation from the very thing we now face: a runaway branch of the government. But make no mistake. The check system is still in place. It just isn’t being used by Congress. Instead, our elected representatives go on allowing judges to enforce their new standard for law.
Actually, as I said before, they're letting the POTUS do this. Judges are still working from the prepared script.

Secular humanism and its penchant for moral relativism, along with misapplied Darwinism, has now become the postmodern foundation on which America’s courts and law schools are built. Constitutional and legal scholar John Eidsmoe observes: “Twentieth-century jurisprudence is based on a Darwinian worldview. Life evolves, men evolve, society evolves, and therefore laws and the constitution’s meaning evolves and changes with time.”5

This new legal formulation is known as “legal positivism.” In his book, Christianity and the Constitution, John Eidsmoe reviews the writings of the Critical Legal Studies movement, a group of radical lawyers, law professors, and law students. He summarizes legal positivism with the following points:
• There are no objective, God-given standards of law, or if there are, they are irrelevant to the modern legal system.
• Since God is not the author of law, the author of law must be man; in other
words, law is law simply because the highest human authority, the state, has
said it is law and is able to back it up by force.
• Since man and society evolve, therefore law must evolve as well.
• Judges, through their decisions, guide the evolution of law (Note again: judges “make law”).
• To study law, get at the original sources of law, the decisions of judges; hence most law schools today use the “case law” method of teaching law.6
See that? He did it again. I told you he would. Howse is a slippery one. I'll give him that. He says this: "elected representatives go on allowing judges to enforce their new standard for law", which claims that judges are rewriting man's law, and then says this: "There are no objective, God-given standards of law, or if there are, they are irrelevant to the modern legal system.", as if one means the other.

I'd also like to point out that the "new standard for law" of these judges is about 220 years old. It's not as old as Moses' tablets (assuming they existed, or if they did, there was only one version...), to be sure, but it's hardly still in the wrapper.

And as a special bonus track, I'd like to ask Howse what method he'd suggest for teaching law, aside from case studies. Rabbinical study?

Another, simpler definition of legal positivism is: moral relativism applied to law. Moral relativism is the belief there is no such thing as moral absolutes—no standard of right or wrong for all people in all places at all times. At times, moral relativism is also called, simply, pragmatism. Moral relativism is closely tied to situational ethics, the belief that individuals are free to decide for themselves what is best for them to secure the most desirable outcome in any given situation.
There's a little obfuscation happening here, too. He's right, in that laws have changed. But he's claiming it's a bad thing. And maybe he thinks it is. For instance, it's no longer okay to castrate or lynch a black man because he had sex with a white woman. Are we really sure that's progress? It's no longer okay to beat your wife. So now what are you supposed to do after you drink fifteen beers and shoot all the cans? You're not allowed to go out driving then, either! Further, women can vote, too, which has caused no end of difficulties. Those activist judges are fucking up everything.

The fact is that things are relative. What's right for you may not be right for some. It takes diff'rent strokes to move the world. Even fucking sitcoms know it, and that's from the goddamn 80s. Brannon Howse is a neanderthal, which is funny, because he doesn't even think they existed (I'm assuming. He may be strangely rational when it comes to things like paleontology, geology, and biology.)

And furthermore, even god has no fucking consistency in his laws. He gave the Law to Moses, a different law to Jesus, another one to Mohammad, then another to John Smith. And again, that's just one fucking god. And even within those groups, there're differing rules: Catholicism v. Anglicanism v. Pentacostalism v. everybody else. Shia v. Sunni. Orthodox Jews v. Reformed Jews. The Buddha (who is not a god), presented another set of rules (though they're not as binding), Lao Tze came up with another, and Confucius wrote hundreds of rules. And that's just China (And I know I'm leaving some out). In the 20th century, L. Ron Hubbard hit another. And I haven't dealt with the "dead" religions, the smaller ones, the cults, the sects, the creeds, and a bunch of other major religions that I just don't have time for.

The cool thing about something like a Constitution is that although it's occasionally vague and open to interpretation (such as determining which groups of people actually qualify as human, and therefore are entitled to "human rights"), it's written by people, for people, and thus able to be interpreted by consensus. Sometimes consnsus is led by a few (as happened in Canada with gay marriage and abortion), and sometimes it's led by many (like the abolition of slavery in the US). But it's only about people, and that lowers the stakes somewhat.

Sorry about that. I'll finish up with Howse, now.

Langdell’s thought was advanced further by Dean Roscoe Pound and Supreme Court Justice Oliver Wendell Holmes Jr. Holmes argued there is no fixed moral foundation for law: “The felt necessities of the time, the prevalent moral and political theories . . . have a good deal more to do than the syllogism [legal reasoning process] in determining the rules by which men should be governed.”8

Did you catch that? The “felt necessities of the time” and “prevalent moral and political theories” should be the basis of the rules by which men are governed.]
I caught it. He's trying to say that Holmes tried to pull a fast one on us. We're paying attention, Brannon. Carry on.

Using the “felt necessities” and “prevalent theories” model, judges can allow just about anything to be legal, depending on whose feelings, morals, and political theories are chosen for reference. Guided by this dangerous thinking, we have seen countless abortions performed in America. Even the grisly partial-birth abortion procedure has passed legal muster—a practice the late Senator Daniel Patrick Moynahan called “near infanticide.”

Along with millions of babies, matters of decency have also been aborted. Current U.S. Supreme Court Justice Ruth Bader Ginsburg, while serving as an attorney for the ACLU in 1977, wrote a paper, entitled “Sex Bias in the U.S. Code,” for the U.S. Commission on Civil Rights. In it, she argued that the legal age for sexual activity should be lowered to twelve years old.9 If enough judges agree the age change “is a necessity” based on the perverted “moral and political theories” of Alfred Kinsey, for instance, Americans would have to accept that it would be legal for an adult to have sex with a child of age twelve. Lest you think that too crazy to happen, bear in mind that famed sex researcher Alfred Kinsey actually promoted the idea of adults having sex with children, and there are other forces pushing in similar directions. A University of Minnesota publisher produced a book that discusses the “benefits” of children having sex with adults, and the North American Man/Boy Love Association has promoted this idea for years. These are the kinds of philosophical foundations that are now in play with relativistic judges.
Howse tries some "slippery slope" shit on us. I did the same thing myself, earlier. But Howse was asking for it. Holmes' "felt necessities of the time" did include slavery, suffrage, and allowing gay marriage, too, so my slippery slope stunt was retroactive. He pulls out that tired old lint-covered chestnut of gay marriage equalling pedophilia, but not before ignoring the fact that judges still have to work with the fucking Constitution as their rule book, and judge new laws against that.

It's stupid, but it's really the best he's got. Further, he gets to blame Kinsey for it. At least that's new. Oh, and apparently NAMBLA runs the SCOTUS. Did you guys get that one? Bonus points!

So there you have it. Howse's reactionary screeching, and my reaction.

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