Monday, June 1, 2009

Showers, Constitutions

Early Summer Mist


Late Spring Shower, May 30 2009We had a delightful shower this last Saturday with that old Oak Glen summer weather pattern--two or three days of clouds rising like castles over the Forest Falls ridge and then boom--cool winds and rain. This one was just a pleasant late spring wash and I saw guests standing out in it, sort of celebrating. Storms have a kind of signature that lets you know whether they're dangerous or not, and if I could order weather, I would order at least a dozen of these a year. No hail. Light rain. Cool wind. Proof of the Almighty #4324-lr.(3c).


The farm, courtesy of many dedicated hands, is looking more and more story-book these days. There was so much manicured cultivation in every direction, when I walked the place yesterday, that I got to thinking I should remind you all that when you come up, you can spend at least an hour or two exploring the place, along the red-dash marked trail on the farm map. (Follow the map carefully; we do have neighbors.) There are some cross-valley vistas that can't be done justice by any photo, so you should come up and have a meal, then take a walk. Can a corporate restaurant offer you acres of acres of farm land, by way of after-meal constitutional? I think not, sir. (Don't quote that last sentence out of context by the way.)


Kitchen Gardens on a spring day, May 2009


Strawberries on a rainy day




Taking a Constitutional




Two Quotes this morning, the first from Federalist #78:



Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.



The second, hauntingly, comes from a period more than 30 years later:



"It has long, however, been my opinion, and I have never shrunk from its expression ... that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; ... working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."



--Thomas Jefferson, letter to Charles Hammond, August 18, 1821



The first quote is Hamilton's and the second is Jefferson's. They weren't the best of friends, of course, but the erie prescience of Jefferson is difficult to ignore, even if he had the benefit of watching the "federal judiciary" in operation for some years, by the time he made this damning observation.


The fight over Proposition 8 this week, and in the oncoming months, highlights a sorry reality about our judges' soft-spoken but voracious appetite for power.


Hamilton wrote, truthfully, that the role of the courts is to determine if a statute violates the Constitution. "No legislative act, therefore, contrary to the Constitution, can be valid."


Certainly, in instances where our Constitution is very clear, as in the case of the 2nd Amendment, we would expect the court to strike down all kinds of restrictive gun laws, which go far beyond the regulation of the militia and extend to an outright banning of the clear right of the people to "bear" arms.



However, when the life-time appointed jurists began looking to the Constitution's "penumbral emanations" to strike down laws they don't agree with, or use court orders and injunctions to make law they would prefer, they make themselves into whores without the face paint. Read the Constitution of the United States. Do you find any explicit or even implied right to kill another human being in the womb or define marriage however you like? It doesn't exist. It's not there. If you want it there, amend the document, but don't pretend a judge should be making policy. Supreme court nominee Sonia Sotomayer advocated just that in a candid, but caught-on-tape moment. In so doing, she broke a trade secret of the guild. ("Shut up, Sonia. We know we make policy; we're just not supposed to tell the public!")


Judges have an obligation, a sacred obligation, to make their arguments without resorting to a chain of implicit and tenuous assumptions about the intent of the original language. When you hear someone talking about the United States Constitution as a "living, breathing document, capable of change," ask them if their marriage licence is "living and breathing." Ask them if their wedding vows can be changed to reflect new partners, as the urge comes along. Ask them if their bank can change their mortgage agreement whenever they feel like it. Ask them if the treasury can just decide whether to make good on its "living, breathing" bond obligations.


Say what you mean, judge, but don't lie to yourself. A judge who makes himself into a legislator is really no better than the worst sort of con artist or rapist or murderer on the street. Each of these thugs has active contempt for the law, but you could argue that the "policy making" judge is far worse than the murderer, because when we feel that even judges can't be trusted to obey the law, why should society? Murderers only kill people. Bad judges can kill the very law that protects us from muderers.


Believe it or not, the founders, in their wisdom, knew that even those appointed to sit on the bench would be capable of this sort of depravity, and they fully expected both the legislature and the executive to check that depravity. In practice, however, they don't. A truly constitutional president would have ordered federal law enforcement to "stand down" on any Roe v. Wade related prosecution or arrest, and he would have allowed the states to make and enforce their own criminal law on the matter. He would have encouraged a show down with the judiciary, when it becomes infected with policy-makers, as opposed to jurists.


Hamilton argued that the judge had no "sword," but in fact he does. If you ask most policeman where their authority comes from, they will hold up a court order. American law enforcement has become nearly unquestioning in its sense of obligation to the courts. Just once, I would like to see an order from the governor (or the president) come into conflict with an order from a judge. Even better, I'd like to see a city council get a little Patrick Henry spirit, and order their police departments not to enforce a federal judicial order they thought was an egregious infringement of their local right to representation.


Let the checks and balances begin.

No comments: