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The framers of the American Constitution, conscious of human sinfulness, devised a structure of checks and balances to prevent any one branch of government from exercising too much power. But while the founders limited the executive and the legislature, they stopped short of sufficiently checking and balancing the judiciary.
And why should they have? The founders assumed that the courts would be checked and balanced by the law and, ultimately, the Constitution. And, where courts must decide a question not addressed by a statute, they follow precedent.
The founders never dreamed there would come a time when an American court would presume to make up and then enforce rights never mentioned in the Constitution, such as the right to an abortion.
They could never have imagined that a court would ignore precedent to the extent of throwing out thousands of years of family law to open up marriage to people of the same sex.
They could never have conceived of postmodernist legal theory, which recognizes no fixed, objective meaning in the law; which believes interpretation of the law is an arbitrary construction; which believes statutes and the Constitution itself are ever-evolving, relativistic paradigms that can be used to impose the judge's personal opinion.
Two recent cases demonstrate how elements of our court system are operating increasingly outside the law. The Florida courts ruled that Terri Schiavo's husband had the right to order her feeding tube removed so that she will die. Perhaps there is a law that allows such an action, however unjust. So the Florida legislature passed a bill, which Governor Jeb Bush signed into law, that would save Ms. Schiavo's life. But then the Florida Supreme Court voided that law, charging that the legislature was just trying to get around the original court ruling.
But what is wrong with that? If the people of Florida have a law they do not agree with, do they not have a right to change it through the legislative process? Do the people of Florida have no remedy if they do not believe euthanasia should be legal in their state? Why have a legislature if courts are going to ignore the laws they pass, allowing only the laws the court approves of, and, in effect, ruling by fiat?
In the Schiavo case, the courts are insisting that an innocent, unconvicted person suffer the death penalty. Now, in Roper v. Simmons, the U.S. Supreme Court has ruled that a guilty, convicted person may not suffer the death penalty.
It is possible to agree with the substance of the ruling-that no one may be executed who committed the crime when under the age of 17-while worrying about the court's reasoning. In striking down the laws of 20 states that permit the execution of minors, the court cited the laws of other countries. It said, with no evidence, that there is a "consensus" in this country that executing minors is wrong. It said, with no evidence, that minors cannot be fully responsible for their behavior. The court even reversed its own ruling of only 15 years ago.
If there is a consensus against executing minors, the procedure for a self-governing people would be to urge state legislators to pass a law stopping the practice. But instead we have judges who remove the people's rights to make laws through their elected representatives and instead take on the legislative role themselves.
Liberals have an increasingly difficult time getting elected. So they pursue their agendas instead through the courts. And they keep getting their way. This is because judges tend to come from the ranks of the cultural elite-from academia, the upper class, trial lawyers-and tend to be liberal.
Civilization requires the rule of law. Executives, legislators, and citizens must obey the law, including court rulings. But the courts too must obey the law. Many judges do, interpreting and applying the law that is outside themselves. But with our complex system of legal review and multiple appeals, cases often find their way eventually to a lawless judge.
Government by judges is no longer democracy (rule by the people). It is oligarchy (rule by a few). And when judges not only rule but do so under no restraints, it is tyranny.