This has truly been a slow-motion serialization of the print version of the book I wrote three years ago. For those keeping score, here is chapter one, chapter two, chapter three, and chapter four. And to find the audio version all at one place, you can go here.
The audio version of Chapter Five (You deserve more than 1/3rd of a government) is here.
(One more thing before I post the chapter. I was just reminded that when I wrote this in 2004, it was the first time that I'd ever heard of -- or at least registered -- Mitt Romney, who of course is now running for the Presidency. His mention in this chapter is all I need to not support him for such a serious and powerful position, and his candidacy so far has done nothing to change my mind on that. Quite the opposite, in fact, but that is a topic for another day).
If any of you are enjoying this serialization of the CourtZero book, I'd appreciate it if you'd let me know.
Chapter Five
You deserve more than one-third
of a government
The courts get to decide whether or not laws passed by Congress, and signed by the President, are constitutional. That means that the courts have the power to decide that what the other two branches of government say is the law, isn’t really the law. Also, the courts have, more and more, taken it upon themselves and asserted the power to instruct the other two branches of government what the law is, even if Congress hasn’t even passed a law on whatever the subject happens to be.
By the way, when I use the terms “Congress” and “President”, I am also often referring to state legislatures and state governors. Court misconduct in the federal (United States) courts is mirrored in state courts.
This is bad, first of all, because Congress is supposed to pass laws, but if a court decides that it does not approve of that law, Congress (made up of our elected representatives) is supposed to do nothing but say “Thank you sir! May I have another?”
Think about that, please. No matter what laws the Congress might pass, they are meaningless unless they get over the hurdle of court approval. That approval might come simply because no one has sued over a law, and the courts make no decision, but the fact remains that the courts can undo anything that Congress decides. Congress, therefore, is nothing more than the legislative staff for the courts. While you and I think that our representatives are making laws, the fact is that they are doing nothing more than suggesting ideas for laws, since the courts can either say “no” to the law, or simply write one of their own instead. I wonder how many congressmen and congresswomen are truly aware that they are nothing more than glorified staff members for judges, feeding the courts ideas to be either rejected or accepted.
I wonder how many presidents have really considered that his signature on a law doesn’t mean a thing if a court has the notion to say otherwise. Congressmen represent districts, or states, and the president represents everyone. The courts, on the other hand, represent the law. That puts them in a different and unique situation. It makes perfect sense, unless they are also the ones to decide what the law is in the first place. When that happens, the courts represent nothing and no one, except for their own whims. When I can say (and get away with it) that “My job is to uphold the law! And my job is also to say what the law is!”…well, that is a problem in a free society, don’t you think? For one thing, it makes no logical sense to have the power to both create the law and to interpret the law. That is exactly what modern courts are doing, however, with increasing frequency and boldness. If the courts were truly meant to be able to create law, and have at the same time the power to validate that law, then by definition they could never be incorrect, and checks and balances are simply a myth. That should give pause to everyone, for even if you may like the decisions the judges are making today, how do you know you will like them in five or ten years, or in your child’s generation? In short, if we acquiesce to the courts holding the ultimate power over every action of government, what can you do when they rule against your interests?
That is not how it is supposed to work. The way our government was set up, the courts are given the task of resolving disputes. In other words, judges are supposed to hear a set of facts, figure out which facts are true, and then ask the question, “What does the law say about this set of facts?” The law, the Constitution presumed, would be what elected representatives said the law was. This is really a pretty nifty notion. In that world where things work the way they are supposed to work, lawyers have to be virtuous and honest and do their very, very best job at presenting the facts of a case. In the real world of activist courts, however, lawyers have no real duty but to present judges excuses for how the judges want to rule anyway, giving the judges something to “hang their hats on.” And all the while the real world people with real world disputes often fall by the wayside as the courts use them to advance their own agendas.
So why do the other branches allow that? It is a good question, and the answer is probably somewhere between a lack of understanding and a lack of will. For examples of how poorly even our elected representatives perceive what the law is, and their own roles in creating and enforcing it, one need go no further than the recent controversy over same-sex marriage.
When the Massachusetts Supreme Court recently ordered the Massachusetts legislature to pass a new law to legalize state-recognized marriage between same-sex partners, Governor Mitt Romney sent out a spokesperson to say, “Gov. Romney understands and respects that people have very strong personal views both for or against same-gender marriage…But on this point, the law is clear." The Governor of Massachusetts also released the statement that, "We obviously have to follow the law as provided by the Supreme Judicial Court, even if we don't agree with it." The statement continued that the people of Massachusetts, in order to obey the judicial command to change the law, will have to figure out "what kind of statute we can fashion which is consistent with the law."
Does that make any sense at all? How does a governor, an office-holder sworn to uphold the law, take the position that the law is “provided” by the courts? Does he believe that he actually swore to uphold and defend the Justices of the Supreme Judicial Court?
Not to pick on Governor Romney too much, the Attorney General of New York, Elliot Spitzer, said about the same topic that the controversy of same-sex marriage “must and will be decided by the courts.”
How does that make you feel about the power of your vote or the stability of the law under which you live? If those charged with defending the law, as passed by elected representatives, take the position that all law comes from judges, and that those judges must be obeyed, then where do we who don’t have black robes hanging in the closet stand?
Let me be clear. There is such a thing as a bad law and sometimes our elected representatives do pass unconstitutional laws. The courts do have a role to play in balancing the other branches, but have no doubt about this: when our governors and attorneys general can’t even identify the law as anything other than what judges say, then there are no checks and balances, and suddenly the least powerful branch of government becomes the most powerful branch of government by virtue of the lack of courage and intellectual neglect of those leaders who are not held to account by we the voting folks.
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