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Wednesday, October 15, 2003

Thank G*d

It looks as though the U.S. Supreme Court will be hearing the famous Newdow case, involving the constitutionality of the phrase "under God" in the Pledge of Allegiance. The High Court's acceptance of the case for review takes the spotlight off Judge Ted Goodwin of the Ninth Circuit, who wrote the controversial Court of Appeals opinion and for whom I once was a law clerk. (Thanks to Howard Bashman of How Appealing for the link.)

Supreme Court Justice Antonin Scalia, who has already made some fairly heated public remarks about the case, has now had to recuse himself on account of it. Doubtlessly he will receive praise for that decision, but as a taxpayer I'm not pleased. We ought to dock his pay. He's supposed to keep silent about pending cases and then rule on them, not make speeches about them and then have to sit them out.

The rest of the Supremes may dodge the First Amendment issue if they decide that the plaintiff in the case does not have standing to sue. The court could decide that he's a noncustodial parent, without the right to challenge what happens to his child at school. That's a hot issue that's likely to get more public attention as the case approaches decision by the justices.

Comments (1)

If we are going to start docking judge's pay for not doing their job, most Federal judge's would go hungry. Very few of them remember that little Separation of Powers doctrine. Since about the Warren court they have been willing to make laws more often then rule on them.

This has caused a good number of people who lose in a democratic setting (elections and legislative votes) to run to the courts for a judicial fiat. It is much easier to convince 1, 2 of 3, or 5 or 9 people of your point of view then 51% of the electorate. It also fosters the idea that the Plaintiff is morally superior to the un-educated ignorant electorate, and the enlightened judge will set things right.

We are at the point that we either need a "Not Withstanding" amendment to the Constitution (i.e. add a check to Judiciary power. See Canada’s constitution) or start impeaching people for ignoring that we have 3 branches of government.

I remind people that Marbury v Madison was a Separation of Powers case. Back then the Court felt that the Constitution limited its power and it wasn’t willing to overstep that power, even when invited to do so by Congress.

We really are on the same road that as Canada, but they are much further down that road. In Canada, the legislature was no will or impetus anymore. Canada has a 1 party system (like the old Soviet Union) and the legislature is secure in their jobs. Despite that fact that Canada has a “Not Withstanding” clause, they basically allow the courts to legislate. That is how they got gay marriage, convicts having the right to vote, etc. Every year Canadians get 1-3 rulings that change their way of life and rights and Canadians do not get to vote on that. Whether you agree with the court’s moral decisions or not (and some I do and some I don’t), it is not the purview of the judiciary to take laws and shove them down the citizen’s throats. The court’s in the US (or Canada) aren’t elected.

Alright comes the part were I make the obligatory statement of how I believe in all the liberal causes. Because if you don’t make this kind of statement people don’t have to address your argument, they can just call you a “racist,” “bigot”, “narrow minded”, or “intolerant” and end the argument. Demonizing your opponent is a great way to win an argument and suppress free speech.

Ok, here goes ...
I am pro-abortion. I am even pro-gay marriage. (But, we need to designate one of them as the “husband” so we know who to screw over in a divorce. Actually, I’d like to do away with marriage (leave it to the church) and just have the state recognize “domestic partnerships” with capital accounts, no remuneration for services, and informational tax returns, etc.) I am even atheist. I mean I hate God as much as the next right-thinking Democrat does. I just don’t believe we should be intolerant to those who want to believe in God.

The “ends” may be fine, but the “let us get a judicial fiat and win by any means necessary” idea that has taken hold in Western society should end. And, the idea that we’re pro-democracy but other laws should come from some un-elected official, should end too. (Although the EU constitution seems to formalize that idea.)

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