Lawlessness within the Courts

[bfp]

Lawlessness usually conjures up images of a wild frontier or mobs in the streets. But the painful reality is that the supreme examples of lawlessness in our times are in the august and sedate chambers of the Supreme Court of the United States.
If you think the issue in the recent Supreme Court decision upholding campaign finance legislation is whether campaign finance reform is a good idea or a bad idea, then you have already surrendered the far more important and more fundamental idea of Constitutional government.

There is nothing in the Constitution of the United States which authorizes Congress to regulate what is said by whom, or under what conditions, in a political campaign. On the contrary, the Constitution says plainly, "Congress shall make no law" — no law! — "abridging the freedom of speech."

The merits or demerits of this particular law, restricting what you can say when, or how much money you can contribute to get your message out, are all beside the point. Just what part of "no law" does the Supreme Court justices not understand?

The sad — indeed, tragic — fact is that they understand completely. They just think that this legislation is a good idea and are not going to let the Constitution stand in their way.

Moreover, they know from experience that if they can snow us with huge amounts of pious rhetoric, saying the kinds of things that the mainstream media will echo, that their wilful exercise of power will go unchallenged. In short, the Constitution be damned, we're doing our own thing.

At least the people who engaged in wild west shootouts or lynch mob violence spared us the pretence that they were upholding the Constitution. Whatever horrors these lawless and murderous people might inflict at particular times and places, they never had the power to undermine the very basis of the government of the United States.

The U.S. Supreme Court does — and is in the process of doing just that. Other courts, taking their cue from the top, have likewise behaved like little tin gods, imposing their own notions disguised as law.

One of the tragedies of our time, and a harbinger of future tragedies, is that court decisions at all levels have come to be judged by whether we agree or disagree with the policy that is upheld or overturned.

Recent controversies over gay marriage have been a classic example of failing to see the woods for the trees. The most fundamental issue is not gay marriage. The most fundamental issue is who is to decide whether or not to legalize gay marriage — and all the other decisions that define a free, self-governing people, as distinguished from people living under dictators in black robes.

The political left is all for judicial activism, because courts can impose much of the liberal agenda that most elected officials are afraid to impose, such as racial quotas, gay marriage and driving religious expression underground.

Bitter and ugly fights over judicial nominees are one consequence of liberals' heavy dependence on judges to impose policies which elected officials dare not impose. Decent, honorable and highly qualified people like California Justice Janice Rogers Brown are smeared and lied about because they insist that what the Constitution says still matters.

Sadly, the idea that judges are to make social policy, not just enforce the Constitution and the statutes, has spread even among some conservative constituencies. The National Rifle Association, for example, attacked Justice Brown for upholding California's assault weapons ban.

The issue was not whether Justice Brown personally favored this ban or not. The issue was whether the state legislature had the right to impose such a ban. Since there is no right to bear arms in the California Constitution, and state judges are bound by federal courts' interpretation of that right in the federal Constitution, this decision was the only one to make.
We can't vote for federal judges but we can vote for those who appoint them and those who confirm them. We need to remember judges — and the Constitution — when we are in that voting booth, if we want our votes to continue to mean something.

[Adam D]

Funny, whenever the courts come out in favor of a specific group, they never stop to complain about "judicial activism".

I direct you to Article I, Section 8: To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

And Article I, Section 4: The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

And Amendment 15: Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.



It has been determined that Congress posesses the legal right to legislate and regulate the voting process to ensure fairness in elections insofar as Congress does not impair the voting rights of any individual eligible to vote under the Constitution.

Money = speech .....kind of

Buckley v. Valeo (1976)


Summary

http://www.oyez.org/oyez/resource/case/57/


Shuold be full case

http://caselaw.lp.findlaw.com/script...ol=424&invol=1


and........ Judicial Activism - regardless of the philosophy benefitted at the expense of the rule of law and expanding the limitations on the power of the judiciary is a horrible thing.

[mc E]

xiannaix ------ your bio says your an attorney. Would you be willing to shed some light on that for us?

[mc E]

nothing was troubling me about it. I just found it interesting that an attorney would be a regular visitor here on draves. Basically I was just being nosey.

[bfp]

Originally posted by mc E
nothing was troubling me about it. I just found it interesting that an attorney would be a regular visitor here on draves. Basically I was just being nosey.

Shit, I even know a few attorneys that get down.

[Adam D]

Originally posted by xiannaix
not really - i don't work for law enforcement of any kind if that's what's troubling you

I think he was just curious what kind of a lawyer you are. For that matter, so am I.

[Adam D]

Originally posted by xiannaix
Money = speech .....kind of

Buckley v. Valeo (1976)


Summary

http://www.oyez.org/oyez/resource/case/57/


Shuold be full case

http://caselaw.lp.findlaw.com/script...ol=424&invol=1

But in that case the courts found that contributions beyond the candidatee himself/herself could be limited without violating the First Amendment, which was my argument.

and........ Judicial Activism - regardless of the philosophy benefitted at the expense of the rule of law and expanding the limitations on the power of the judiciary is a horrible thing.

I don't particularly think judicial activism within the rule of law is a bad thing. When the courts rule on the nature of established, codified law, or even on the nature of common law (as you well know as an attorney is a judicial tradition in the US) is utilized within the limits of the law, it protects the rule of law rather than violate it. I would agree that judicial activism beyond the rule of law is a terrible thing, but extending the common law tradition that the US adheres to is not. It's a judicial tradition that pre-dates the US itself. But you know that.

With the growing disconnection of legislators, executives, and beauracrats from the majority of the population, the judiciary seems to be the last front in which the general public can access rulemaking and make a legal impact within their government. Judicial activism may be a second choice for individuals to make a difference, but with little other choice, it's become one of the few opportunities for individuals to be heard.