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November 6, 2004
Column #1,210

                                   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 and trounced.

     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 liberal afterwards.

     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 to happen."

     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 possible.

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