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| BEWARE JUDICIAL ACTIVISM/TYRANNY |
| Monday, March 14, 2005 |
| Left leaners are currently rejoicing at the trend in the judicial system where judges are circumventing the United States Constitution and granting themselves power beyond what is given them. Consider this:
SAN FRANCISCO (AP) - A judge ruled Monday that California's ban on gay marriage is unconstitutional, saying the state could no longer justify limiting marriage to a man and a woman.
In the eagerly awaited opinion likely to be appealed to the state's highest court, San Francisco County Superior Court Judge Richard Kramer said that withholding marriage licenses from gays and lesbians is unconstitutional.
"It appears that no rational purpose exists for limiting marriage in this state to opposite-sex partners," Kramer wrote.
Now think about this for a second people. The Constitution separated powers in this nation for a reason. Judges were NOT ALLOWED to make law (and judge it to--conflict of interest). In the ABSENCE of law, a judge could not just make one up, he had to make no binding ruling on the issue and pass it back to the LEGISLATIVE branch of government who would formulate the law.
Now this judge makes law in the absence of law--something that is CLEARLY unconstitutional. While left-leaners may currently rejoice at the current trend of judicial tyranny, one day they will be crying when it is focused on them!
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posted by Jack Mercer @ 3/14/2005 05:09:00 PM   |
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| 8 Comments: |
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Perhaps you might want to think a little closer about the meaning of the term judicial activism.
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Jim,
Thanks for your link. I understand where you're coming from, but I can't see our courts making law. Throughout this land our judges may be elected or appointed, and when they make law they are unaccountable for it. At least we have a vote to hold our legislative branches of government responsible for the laws they enact--courts we, the people, have little or no control over.
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Oh, and another thing, Jim--it is wrong no matter which way it goes--ideology aside.
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My central point is that any decision based on constitutional grounds must seem like judicial activism to somebody. Take the case you cite in your post. IMHO, the case was correctly decided. The judge had clear and unambiguous constitutional grounds in both the US and the CA constitutions. In fact, from where I sit, to have ruled otherwise would have been to violate the constitution.
Now you are free to disagree with my take on the Equal Protection clause or the relevant sections of the CA constitution. And if you do, if in your opinion the judge in this case stepped outside of the constitution, then it will seem to you like judicial activism.
In short, if judges are not allowed to making rulings that seem like judicial activism to anybody then they will not be allow to make rulings – period – especially if there are constitutional issues.
For even to uphold a law is activism of a sort, if that law is plainly unconstitutional.
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Jim, I think what I'm getting at is that when one comes to the conclusion that something is not in their particular constitution, you can't declare it "constitutional" or "unconstitutional". That's up to the legislature to decide. But I do agree, that people only complain when it bumps head with their ideology.
In regards to this particular issue, though, it is my personal opinion that government should stay out of marriage altogether anyway--any kind.
Good points you make, though, all around.
-Jack
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We’re still talking past each other here. The problem is that people disagree on whether there is anything in a constitution to support a decision. If you support the decision, it is because you feel that there is a solid constitutional basis. If you oppose the decision, it is because you feel that there is no basis whatsoever in the constitution for the decision. The case you speak of, “when one comes to the conclusion that something is not in their particular constitution” is always and in every instance subjective. There is no objective means of determining whether a decision is constitutionally valid or an act of judicial activism.
And, while you may feel that government should have no part in marriage, while it does, it must do so equally.
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Jim, I see your point, and I believe you're right in this case. I am not familiar with the California Constitution, so I may have been out of line on my post here. I am prone to mistakes (very few! ha!). I usually research extensively; however, of late I have been busy in the extreme at work, and have not been able to put the time needed into the blog. This is where men like you come in--you keep me and others not only honest, but informed!
Here is where I come from. When I was trying disability cases, my job was to make a decision based on existing law. If there were circumstances in the case not covered by any existing law, then that case and circumstance was remanded to the administration that made the laws so that law could be made. I was not allowed to say, "There is no law covering this circumstance, therefore your disability is denied/allowed".
Jim, we DO have judges doing this today. This is judicial activism. They are making laws where they see no laws, because to allow or disallow in the absence of law is making law. I become uneasy when I see this happening, as many judgeships are appointments (lifetime) with little or no oversight, accountability or remedy.
An example of the last statement would be Judge Stephen Reinhardt of the 9th Circuit, one of the most overturned judges in history, continues to make faulty decisions based on whatever drummer he happens to be listening to at the time. Jim, if you and I were in a job where we made that many wrong decisions, would we still have a job?
I believe I see what you are saying though.
Thanks for the education!
-Jack
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Right on brother.