Judicial Activism and the Courts

I have become more and more interested in this subject recently after a number of court rulings, particularly by the United States Supreme Court. I have looked into several interesting decisions specifically because of the liberal use of the courts to establish law. My previous posting was about the danger of more liberal nominations after the next election should Barack Obama win the election and the Democrats control the Senate. This time let us look at a couple of specific cases.

The District of Columbia Gun Control Law (Heller versus DC)

Mr. Heller is a man who legally carries a gun during the performance of his job in Washington, DC. He is trained to use it and carries it when at work. The DC gun law denied Mr. Heller the right to possess a firearm at home despite his training and demonstrated ability to carry a gun safely. Mr. Heller sued based on the interpretation of the Second Amendment of the Constitution that the individual right to own guns for legitimate purposes is not to be infringed by state or municipal law. DC maintained that its interest in the protection of the citizens of DC was sufficient cause to pass the law. In a 5-4 ruling today, the US Supreme Court struck down the DC law, causing howls of liberal protest and celebration by conservatives. Justice Scalia wrote in the majority opinion that while the efficacy of protecting the citizenry by restricting gun ownership is debatable, the power of the court to contravene the Second Amendment is not debatable. Therefore, the Supreme Court has the power to review and interpret law but does NOT have the power to make law. It therefore follows that if the US Supreme Court does not hold this power, no lower court does.

The landmark case of Marbury vs Madison confirmed the idea of judicial review even though the concept had been informally in place earlier. In the Marbury case, Chief Justice John Marshall found that there was a conflict between the Constitution and the Judiciary Act of 1789. Since the Judiciary Act was a law passed by Congress, the question became whether Congress could legitimately pass a law which conflicted with the Constitution. Marshall wrote that law that conflicts with the Constitution is not law and therefore the Constitution always wins out. Since the Constitution is the highest law of the land and judges swear an oath to it, how can a judge issue a ruling in conflict with it? Marshall’s point was that there was no reason to have a Constitution if Congress never paid attention to it and passed laws in conflict with it.

One of the more interesting things which came out of this decision is how the four liberal justices (Souter, Stevens, Ginsburg, Breyer) all found a way to justify the law despite it being in conflict with the United States Constitution. The Canon of Constitutional Avoidance states that if an issue can be interpreted without causing a constitutional conflict, it should be interpreted that way. In this case, there was no way to avoid the conflict because the law directly conflicted with the Second Amendment despite any good intentions of the DC government.

Eminent Domain (Susette Kelo versus City of New London)

The concept of Eminent Domain has been around for a long time. The idea is that a government can seize property from an individual property owner for use to benefit the community at large. Per the Takings Clause of the Fifth Amendment, the property owner is compensated for the value of the property, though often not to their satisfaction. This has historically meant takings for uses like hospitals, transportation centers, public utilities and other obvious public welfare projects, usually tax-funded. For completeness, eminent domain does not only apply to real estate properties, it can be used by the government to seize military needs, trade secrets, patents and other intellectual properties. The difference in the Kelo case was that property was being taken from an individual to be used for a private venture for profit by other private investors, not the government. The government of New London argued that the improvements to the property would increase tax revenues and the business venture would be good for the citizens at large. Kelo argued the government had no right to seize property from an individual for another individual. The taking of property for profit subsequently made its way to the US Supreme Court.

The case was decided 5-4 in favor of City of New London setting off nationwide protest. The majority were the five liberal justices and Justice Anthony Kennedy. In opposing the ruling, Justice Scalia argued that ruling in favor of New London would eliminate the distinction between private and public property and that the only private property would be property the government was not interested in obtaining. After the decision, reaction was swift. Polls showed between 65-97% of people interviewed disagreed with the decision. President Bush issued an executive order banning similar eminent domain procedures by the federal government. More than forty states have enacted laws to prevent takings like the Kelo case. This is another case of the liberal US Supreme Court justices making law in conflict with the constitution. The Fifth Amendment specifically states “nor shall private property be taken for public use, without just compensation”. The liberal justices substitute “public purpose” for the actual phrase “public use”. This means that any wealthy business can have the local government condemn (take) anyone’s property solely with a promise to have a more successful business. This is clearly an example of liberalism in that the government is always smarter than its citizens and always knows what is best for individuals. This decision also preferentially gives advantage to the wealthy and powerful.

Both of these cases point out the need to avoid nominating judicial activists to the courts. President George W. Bush can be accused of a lot of things but he has certainly been a lot more successful in nominating Supreme Court justices who interpret rather than create law than either Presidents Eisenhower or Reagan.

Immigration Politics

I listened to a “news report” on National Public Radio today about “undocumented workers” and the passage of a law in Prince William County, Virginia. The law basically states that when a person is arrested or brought to the attention of law enforcement, they will notify the US Government about the illegal status of the person. Therefore, a person who is violating the law of the United States will be reported to the appropriate authority about the law violation. On the surface, this seems to be a pretty intuitively obvious thing to do. However, the political left is outraged. National Public Radio tends to be a liberal news outlet and the story was, of course, extremely sympathetic to the plight of the law-breakers (“victims”). Some of the justifications they used require some severe stretching.

The focus of the story was two women who entered the country legally using work visas and then stayed past the expiration of their visas. Let’s make sure this is clear: the two women knowingly violated the law by overstaying the visa that the United States granted them. How does that make them sympathetic characters? The story lamented how one could not visit a friend in the hospital because she might have to produce identification. I suppose we should feel badly for bank robbers on the run who can’t visit their families because they might get caught. We are also supposed to be feeling sorry for illegal aliens because they might be reported if they commit a crime and get arrested. Am I the only one who sees how stupid this argument is?

The next segment was an interview with someone who was talking about how a group of three or four hundred illegal aliens (“undocumented workers”) who were receiving free tax-funded education to learn English as a second language were no longer attending classes. Let’s make sure this is clear: A group of immigration law violators are no longer using U.S. tax funds to receive educational benefits in a country where they shouldn’t be present. How is that a problem? The point was that the new law was causing illegal aliens to leave the county. How is that a problem?

The next portion of the report was about the financial burden. A County Commissioner was saying that because of the volume of illegal aliens in the county, it would cost a lot of money to enforce the law. Let me make sure we understand this: We won’t enforce laws because it costs money. It sounds like the county needs a new commissioner.

I found the interview with the head of the police force very interesting. He stated that the police force does not set up immigration screens or checkpoints. If they encounter someone who is an illegal alien, they do not detain the person unless they are being detained for committing a crime. They do appropriately report the encounter to the federal immigration authorities, as they should. They do detain illegal aliens who are arrested for committing a crime. How is that a problem? Should illegal aliens have special benefits that criminals that are American citizens do not? That is patently ridiculous.

I assume all of this ridiculous logic is way to try to obtain Hispanic support in the upcoming elections. The liberals also said that committing perjury was no big deal for President Clinton because it was about sex. Therefore, the political left can pick the subjects in which it is okay to tell lies in court. When a woman accused Clinton of sexual assault, the National Organization of Women said nothing, because their political agenda (abortion) agreed with Clinton’s. The liberal wing chooses which laws to obey and not obey and when the law contradicts their philosophy or goals, they find a judge who agrees and the just “re-interpret” the law. One cannot cease to be amazed.

Abortion rhetoric

Does the rhetoric drive you nuts, too? "Pro-life" "Pro-choice" are both happy euphemisms for something completely different. I am pretty familiar with life and death decisions in my line of work. So let's look at the issue with some sense. Granted, there are some nuts out there, but I long to believe that most people have some bit of reasonableness in them.

Even the most strident abortion foe cannot possibly believe that making a woman die to give birth, or carry a dead fetus to term is not incredibly cruel and dangerous. If a fetus is diagnosed with trisomy 13, or trisomy 18 (not trisomy 21 Down's Syndrome, before someone goes nuts), anencephaly (baby with no brain), or Tay-Sachs disease, all universally fatal, incompatible with life; who would make that woman continue to carry that fetus around at the risk of her own health and sanity? The arguments for adoption, etc. can potentially be made for rape or incest victims but not for a fetus which cannot possibly live. The people who say "no abortion" are saying they would let women die and/or deliver dead babies. Therefore, any reasonable person should admit that in some set of cases, abortion is an approprate medical procedure.

Even the most strident abortion supporter cannot honestly think that using abortion as a routine birth control technique of convenience is a good thing and that decapitating a healthy late-term fetus is a good outcome. Therefore, if you believe that a fetus is a living being, there should be some reasonable limits set by society about when abortion is an appropriate procedure.

Given those arguments, the discussion becomes not a yes/no absolute but rather, "When is abortion appropriate?" No law or set of criteria will cover all individual cases but the discussion should be couched in those terms. Of course, you don't hear that question because those reasonable terms do not fire up the hard right and hard left primary voters.

The world is not black and white. There are hundreds of abortion and end of life Terry Schiavo-type medical decisions made every day without national publicity. I have been involved in them with families. Except for political gain, there is no reason to stake out extreme unreasonable positions but to raise campaign funds and demonstrate your prostitution to the vote.