Friday, October 27, 2006

Judicial Tyranny

The New Jersey Supreme Court has issued a ruling imposing "gay marriage" on New Jersey. They actually went so far as to "order" the New Jersey legislature to pass a law creating "gay marriage," and gave them a "deadline" of six months to do so.

This is what conservatives mean by judicial tyranny. The New Jersey Supreme Court has no authority to order the state legislature to do anything. None at all. They certainly don't have the power to order that laws be passed. The courts' job is to enforce the law, not make the law.

This is the same bunch of jokers that in 2002 allowed the Democrats to replace a scandal-plagued Senate candidate with someone else even though it was clearly illegal to do so. They also declared partial-birth abortion a constitutional right, and tried to force the boy scouts to admit homosexual scoutmasters.

What about what the people want? What about democracy? I strongly recommend Ann Coulter's excellent column on the same topic. If we don't stop this, our republic will be reduced to a dictatorship of judges and bureaucrats.

10 comments:

Anonymous said...

This blog is completely mistaken! In a revealing point, no one has yet responded (at the time of this posting) to the question posed by the Pissed off Republican Student in his comment to the blog "Job Opportunity." The question reads: "What is the problem my fellow conservatives have with homosexuals?" I think until this is answered, Allan’s tirades about "a dictatorship of judges and bureaucrats" are hollow. To address the points he raised, however, it is clear his understanding of what happened is superficial at best. In the first place, the New Jersey Supreme Court did not legalize gay marriage. The court ruled unanimously that homosexual couples are entitled to the same rights as heterosexual couples. They told the legislature it has to craft a law reflective of this but specifically left it to the people’s branch to determine what such a law would look like. This means the Justices interpreted the New Jersey state constitution and found current law and practice in violation of it. Having done so, they then instructed the legislature to rectify the problem. I do not know what Allan’s vision of separation of powers is but according to what I learned in high school civics, that is how our system of government functions. Moreover, the courts do not "enforce" the laws passed by the legislature. That is the job of the executive. Thus, in response to his question about what do the people want, the people now have the opportunity to vote for their state legislators based on what type of law they would craft if elected. Most conservatives, I contend, would surely be thrilled with a decision of the courts to outlaw homosexuality. Need I remind you that such a decision would be just as indicative of "a dictatorship of judges and bureaucrats" as would any, against which Allan feels the need to rail? It seems he does not so much care about how government functions so long as it functions in accordance with his vision of society. That, my fellow readers, is not America nor is it democracy.

Allan said...

Some people insist on attributing positions to me that I have never advocated. Anyone who read and understood what I wrote should know that the "problem" I have in both cases is with the specific policies of government.

I do not accept the notiion that there is a meaningful distinction between "gay marriage" and "civil unions," hence what the court has done is to mandate "gay marriage," whatever you choose to call it.

What you learned in high-school civics is wrong. (Why do you trust the government to tell you the truth about government?) Under separation of pwers, the lawmaking power is held by the legislature, not the courts. Ordering that a law be passed is an egregious violation of this principle.

Saying that courts "enforce" laws was shorthand for saying that they decide civil and criminal cases. They have no power to decide what laws ought to exist.

Your assertions as to what conservatives and I would support are baseless and without evidence.

Anonymous said...

You are still incorrect Allan. The task of supreme courts (I'll be more specific) is to interpret constitutions and rule whether enacted laws violate those constitutions. If a law does violate a constitution, it is the task of the court to strike it down. You could make a point that a supreme court cannot issue a deadline for a legislature to write a new law, which is how this issued unfolded in Vermont. Moreover, the task of law enforcement rests (regardless of your views on the judiciary) with the executive. The executive branch executes the laws passed by the legislature. Courts (other than supreme) determine whether the actions of individuals, corporations, etc. are in violation of those laws. And no, I am not a conspiracy theorist as you appear to be and do not believe the government has some sinister motive in teaching high school civics. Your logic suggests I should also not trust those who are anti-government to tell me about the perils of government. Finally, while you may believe that civil unions and gay marriage are no different, you have yet to say what the problem with homosexuals is and why they should not be entitled to either. Therefore, my assertion about a ban on homosexuality is supported by the circumstantial evidence that conservatives (or at least you), by believing gay marriage is wrong but not being able to explain why without suggesting homosexuality itself is wrong, would support a court-enforced ban on homosexuality as an expedient victory in this element of the "culture wars." I could be mistaken, I admit that. Until you explain the roots of your position more articulately, I am forced to make such deductions. Some may be incorrect and lead to the erroneous attribution of positions; however, there seems little choice based on the information you selectively choose to give.

Anonymous said...

I don't always agree with Pat Buchanan, but his article on judicial tyranny hits the mark:
http://www.theconservativevoice.com/article/19722.html

Anonymous said...

A fitting response to the above article: http://www.nytimes.com/2006/10/28/opinion/28sat1.html?_r=1&oref=login. Still waiting, by the way, for someone to step forward and explain what the problem with homosexuals is.

Anonymous said...

A fitting response to the above article: http://www.nytimes.com/2006/10/28/opinion/28sat1.html?_r=1&oref=login. Still waiting, by the way, for someone to step forward and explain what the problem with homosexuals is.

Allan said...

The Supreme Court derives its authority from the US Constitution, as do the President and Congress. Their powers and responsibilties are therein defined.

Please cite for me the provision of the Constitution that authorizes the Supreme Court to interpret the Constitution, much less strike down laws. (Hint: it doesn't exist.)

Anonymous said...

Allan,

Please read Article III Section 2 wherein the Judiciary is given power to deal with "all Cases, in Law and Equity, arising under the Constitution." Hamilton elaborates on this point in Federalist no. 80 where he explicitly suggests the need for constitutional review so as to prevent multiple interpretations of US law. By extension, if the Judiciary is tasked with providing interpretation of US Law and can only deal with cases arising under the Constitution, all law must emanate from the Constitution and the Court has the power to interpret whether or not it does. Finally, to clarify what all of this means, please consult the decision in 5 U.S. 137 (1803). I contend that these three documents provide what it is you think does not exist. Anything else?

Allan said...

The Constitution gives the Supreme Court authority to decide civil and criminal cases arising "under the Constitution." A case to overturn a law is not under the Constitution since the Constitution does not give the courts any authority to overturn laws. It explicitily gives the President aauthority to veto legislation, but gives the Supreme Court no authority to do so.

Hamilton may have supported judicial review, but it is not in the Constitution. Thomas Jefferson certainly didn't think it was.

The Court's suppposed authority to overturn laws was first invented sixteen years after in signing an 1803 case called Marbury vs. Madison. The Court just made it up. Even then, the law in question specifically involved the composition of the judiciary. Another early assertion of this authority was in the Dred Scott case.

I love how you cite the court's assertion of authority as justification for that authority. Would you do the same for Bush?

Anonymous said...

Allan,

I love how you demand I focus on what is written in the Constitution when you yourself do not. Please reread Article III Section 2 and find for me the word criminal. Cases are thus to be viewed as any legal dispute arising from the laws of the US under the Constitution. Such cases could involve the laws themselves and their relation to the Constitution. The dispute between Jefferson and Hamilton is itself testament to the need for judicial review as Hamilton rightly suggests. Let us not forget the implications of your argument either. You are bound by your belief to demand that Justice Scalia, as a strict constructionist, resign from the Court because the Constitution does not authorize him to do the job he is doing. Your point about Bush granting powers to himself is also a straw man argument. The President could not grant powers to himself in contradiction with other provisions of the Constitution. The Court, in establishing judicial review, did not do that. Moreover, I would contend that the Constitution could easily have been amended to remove judicial review from the purview of the Court. That it has not been suggests the people of the United States are fine with the concept, which makes your view that of an extremist minority bent on radically altering the makeup of government.