Wednesday, October 19, 2005

Lode 10-19 II

In last week's column, my colleague Ray Molzon argued that the problems with our judicial branch are overshadowed by the problems with the other two branches. While I would agree with him that the legislative and executive branches are less than perfect, judicial activism is actually, to use his term, at a crisis stage.

In a Republic such as ours, we the people have the ability to vote for legislators as well as the President. Thus, if the legislative and executive branches are not acting in accordance with our wishes, the blame lies squarely on our own shoulders and that of our fellow citizens. If, by his estimation, Bush and the Republican Congress are running the government into the ground, I encourage Molzon to vote them out of power. The beauty of a democratic system is that our representatives are accountable to the voting populace.

This same luxury does not apply to the judicial branch, and this is precisely why judicial activism is so troubling. It is literally impossible for the citizens to rein in an irresponsible court. There have been plenty of preposterous cases of judges legislating from the bench in in the last fifty years. In the interest of space, I will cite just three.

Firstly, in Roe v. Wade the court determined that there was a Constitutional right to privacy giving women the ability to terminate pregnancies, even though the Constitution mentions neither abortion nor privacy. Interestingly enough though it does regulate things not mentioned—like abortion—to the states and the people. So before pro-choicers jump right down my throat something must be asked. How would you have felt if the court had deemed abortion to be unconstitutional? The question is, of course, rhetorical, and abortion should again be decided by the people via the states just like it was pre-Roe, just like the Constitution demands.

Secondly, in Gonzales v. Raich a California law allowing the use of medicinal marijuana was overturned by the court. Evidently that same “right to privacy” does not apply in this case. Ironically, it was not the conservatives who were legislating from the bench against pot on this one. Instead it was liberal justices who see no problems with a living and breathing Constitution which may trump the will of the people at any moment. Those poor hippies are going to have a tough time deciding who to vote for next election.

Most recently, in Kelo v. City of New London, the court has determined that the government may confiscate privately held land if it can be used for promote “economic development”. Evidently the right to property guaranteed by the fifth amendment can be ignored when deemed convenient. This doesn't come as a surprise to someone like myself who actually fears the high court, but it was again the liberal justices who decided to expunge the most basic right in our economic system.

With nine un-elected officials writing the law of the land on abortion, doing away with basic property rights and overturning a state law that allows people to toke up before croaking—all without any consent of the people—one has to wonder how it is possible not to be concerned with the Supreme Court.

Don't get me wrong, most of the folks in Washington seem to be doing a grand job of making a mess of our affairs. Yet our ability to replace the legislature and the President is reason enough fear of the judiciary trumps other beltway concerns. To focus on Bush and Congress at the expense of the judiciary is to make a grave mistake.

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