November 6, 2004
Reining in Activist Judges
America is plagued by a "virulent judicial
activism that increasingly calls into question
the authority of representative government and the vitality of traditional
values?" asserts retired Federal Court of Appeals Judge Robert Bork in his
2003 book, "Coercing Virtue:
The Worldwide Rule of Judges."
His examples are legion going back to 1857, when the
Supreme Court ruled that Dred
Scott, a slave who escaped to Illinois, where slavery was forbidden by
federal law, could not be declared free because this would deprive slave
owners of their property without
"due process of law." That decision, equating human beings with
property, contradicted the people's representatives and the founders.
It so angered the North that it helped ignite
the Civil War.
In 1883 the Supreme Court declared the Civil Rights Act
of 1875 unconstitutional, which was passed to end racial segregation in
hotels, trains and other public places.
African Americans remained second class citizens for another 81 years.
In "Roe v. Wade" the Court declared that a right to
privacy, mentioned nowhere in the
Constitution, permitted a woman to abort a child in her womb. Only a few
states had voted to permit abortion. The Court forced it on the whole
nation, instead of letting Congress decide.
"Communities now find it impossible to control the
torrent of pornography loosed upon
them," due to other Supreme Court decisions, Bork wrote. For example,
it held a federal law was unconstitutional that required the Playboy Channel
to limit its sexually explicit programming to hours when children are unlike
to be viewing.
Now courts are declaring partial birth abortion and
parental consent for abortion to be
unconstitutional. And the highest court of Massachusetts, by a bare 4-3
vote, literally ordered the Legislature to pass a law legalizing same-sex
marriage. In response, 11 states
passed constitutional amendments limiting marriage to a union between a man
and a woman this week.
Two weeks after Louisiana voted 78 percent for
such an amendment, a judge tossed it
out. To remedy that issue, a federal marriage amendment was proposed
What's the solution?
Robert D. Smith, a retired businessman in Greenville,
SC, sees a defect in the Constitution itself in that judges appointed for
life are never held accountable. "Freedom from rule by a few - whether
princes, dictators or judges - was the reason for our revolution, and many
have died to protect it," he argues.
The traditional remedy of appointing judges who respect
the Constitution and laws passed by Congress - has not worked. Justice
Anthony Kennedy was conservative before joining the Supreme Court, and
Federal judges have been impeached for criminal
behavior, but not for wrong votes.
Jefferson felt all judges "should be submitted to some practical and
impartial control." Smith agrees: "The Constitution needs to say plainly
that judges are not to make laws,
and they'll lose their jobs if they do."
Specifically he proposes a "Judicial Accountability
Amendment" that federal judges
could be "removed from office on impeachment for, and conviction of,
usurping the legislative power by ruling or voting to make a ruling which
creates or amends a law, orders a legislative body to enact a law, or
declares a law to be in violation of this Constitution on grounds not stated
in this Constitution."
This is far wiser than trying to pass a Marriage
Amendment, which would not help such
issues as partial birth abortion, parental consent or obscenity laws. What this generic amendment will do is gather support from people who are
furious over a host of imperious
rulings, and channel that anger into a single remedy.
Judge Bork commented, "I don't believe it is
politically feasible. There is too much
political support for such decisions as Roe v. Wade. Can you imagine
Ruth Bader Ginsburg or Steven Breier being impeached? It's not going
Smith counters that if Congress passed the amendment,
and it were ratified
by three-fourths of the states, "What judge would like to risk being
impeached for violating the Constitution? I think they would change
their votes and there would not be a case."
Robert Knight of the Culture and Family Institute
reacts: "When a house is set on fire, the first response should be to put it
out and then take the arsonists off the streets. All too often, after
liberal judges have wreaked havoc with the law, our response has been to
reinvent the law. That's like a homeowner putting on layer after layer of
fireproofing, instead of going after the arsonists. We need more creative
thinking along this line."
With a Republican pickup of Senate seats, this dream is
April 25, 2019: Column 1966: Life
Expectancy Dropping in America
Protecting Girls from Suicide
The Message by Eugene Peterson
Green New Deal
Christian Persecution Rising Abroad
Gun Control Laws Needed
The Worst Valentine:
Pornography: A Public Health Hazard
Sextortion Kills Teens
Cohabitation: A Risky Business
Eight Reasons To Marry
Ten Myths of Marriage
The Ministry of Marriage 911
same sex marriage,
abortion and infanticide,