History repeats itself because human nature repeats itself. Every great writer and every great thinker has understood this truth, including Thomas Jefferson, who rejected the “words, words, words” of both foolish idealists and closet kings to argue that to secure people’s “unalienable rights,” government must be based upon the realities of human nature, especially that reality Washington phrased as the “love of power, and proneness to abuse it, which predominates in the human heart.”
This devotion to the truths of human nature lay beneath Jefferson’s contention that the Framers of the Constitution erred in failing to explicitly limit the power of the judiciary, a point Jefferson often raised with great vigor as in the following: “The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.” Who can read that sentence without acknowledging Jefferson’s keen grasp of the danger posed by a judiciary in which judges appointed for life can be removed only through impeachment, a process which Jefferson called “an impracticable thing, a mere scarecrow.”
Indeed, every person who is honest about human nature will agree that an unaccountable judiciary which says to the people “trust us” is a judiciary which will breed judges who will find a way to rule according to their “own will.” And every honest person aware of the fact that politics renders the impeachment of a judge (or a President) nearly impossible will agree that impeachment as a control upon judges who abuse their power is “a mere scarecrow.”
Because he was honest about human nature, Jefferson would not be surprised that one day politicians and judges would attempt to institutionalize judicial activism as a theory of government (which is what judicial activism actually is and thus properly ought to be called “judicial oligarchy”). Listen to Jefferson’s comment about the natural impulse of judges: “Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.”
A little more than a century after Jefferson issued his warnings about an unfettered judiciary, the institutionalization of a judicial oligarchy did indeed occur when Liberals (both Democrats and Republicans) coined the euphemism “judicial activism” and instituted Liberal Judicial Activism at the Supreme Court. Fifty years later, this political disease has insidiously metastasized into the judiciary at all levels, into law schools, and even lately (for imitation is the sincerest form of flattery) into the executive as “executive activism” (if only, like an incipient cancer, at the municipal level).
Like the wolf of Dante’s Inferno, who “after eating is hungrier than before,” those who will not control their appetite for power disguise their gluttony with “words, words, words.” So it is with Liberal Judicial Activists, who refuse to define themselves as oligarchs, arguing instead that “good justice” is indeed “broad jurisdiction” as they inundate us with an ocean of words to convince us that the Constitution and other laws are “living documents” which require “interpretations” of their supposed life changes by an “enlightened” judiciary.
But a person doesn’t have to be the giant that Jefferson was to know that this claim of “good justice” defies the truth that judges who one moment invoke the law as sacrosanct and the next moment speak of “evolving standards of decency” do nothing more than interpret the law according to their “own will.” To exemplify this fact, we turn to the words of Justice Anthony Kennedy (a frightening exercise because Justice Kennedy hardly represents the most activist justice ever to sit on the Supreme Court).
The date is June 26, 2003, the case is Lawrence v. Texas, in which Justice Kennedy delivers the opinion of the court, writing, “The issue is whether the majority may use the power of the State to enforce these views [views about homosexual sex] on the whole society through operation of the criminal law.” Then, to support the Court’s contention that the majority may not “enforce these views on the whole of society,” Kennedy quotes from Planned Parenthood of Southeastern Pa. v. Casey: “Our [the Court’s] obligation is to define the liberty of all, not to mandate our own moral code.”
The date is March 1, 2005, the case is Roper v. Simmons, in which Justice Kennedy delivers the opinion of the Court, writing, “To implement this framework [of interpreting the Eighth Amendment] this Court has established the propriety and affirmed the necessity of referring to ‘the evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be ‘cruel and unusual.’” [In this case the Court held that laws permitting the death penalty for any person under the age of eighteen are unconstitutional.]
Despite their personal views of what the law ought to say concerning the issues litigated in these two cases, honest people will admit that the cases offer a clear look into the fantastic world of Liberal Judicial Activism, a maddening world in which judges pronounce that “the law is the law is the law” despite any prevailing “moral code” until presto! they tell us that the law is what judges think the people consider “decent” despite what the people may think is “decent” tomorrow.
Further examples of how Liberal Judicial Activists have created a tangled and deceitful web of contradictions which can be explained only by the fact that they ultimately rule according to their “own will” must wait for another time. For now, readers might consider what Liberal Judicial Activists really have in mind for a constitutional democracy “of the people, by the people, for the people” by contemplating the full implications of words spoken by the tumbling Alice who found herself bewildered in a world ruled by transient laws of logic and capricious words whose meanings are as fleeting as the whims of a cat.
“‘Who are you?’ said the Caterpillar.”
“I--I hardly know, Sir, just at present--at least I know who I was when I got up this morning, but I think I must have been changed several times since then.”
Copyright by A.J. DiCintio
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