By Selwyn Duke
Ancient Sparta had the very unique characteristic of having two kings. The purpose of this arrangement was to ensure that no one man would attain too much power - it was perhaps one of the earliest attempts at achieving a balance of power in government. Our founding fathers sought to achieve the same goal by providing for three different branches of government in our Constitution: the executive, the legislative and the judicial. This system only works however, if each branch remains within the parameters the Constitution prescribes for it and doesn't attempt to assume part of the role of one or both of the other branches. Unfortunately though, this is exactly what has been happening for decades now as many judges have been undermining our system of government and trampling upon our rights by engaging in judicial adventurism.
Some years back I was speaking to a rather well-heeled septuagenarian about this issue, and I asked him on what basis a justice was supposed to decide whether or not to allow a law to stand. After stammering a little bit he replied, "uh...based on what he feels is right." Wrong answer. But, he had only lived on this earth for 75 years, so I guess we have to make some allowances. A judge has a twofold role: to determine the intention of the legislators who created the law if the law is ambiguous [which it shouldn't be], and most importantly, to determine the constitutionality of laws. What this means is that how a judge feels should matter not a whit - it doesn't matter if he loves the law, hates it or couldn't care less. If a law is constitutional he must allow it to stand and enforce it, and it doesn't matter how much harm he thinks it might do or if he thinks it's the product of the local mental ward. On the other hand, if a law is unconstitutional he must strike it down even if he thinks it's God's gift to governance and is the greatest thing since sliced bread. It's like being an official at a tennis match - your job is to enforce the rules whether you like them or not. It doesn't matter if you think that two serves are too many to or too few, if a player double-faults his opponent must get the point - case closed. That is a judge's role with respect to law, and when he departs from it he is violating our Constitution and thwarting the will of the people, as the law was made on their behalf by the representatives they elected. Unfortunately, most people are in the same boat as that geriatric millionaire - they have no clue about how their government is supposed to work and their ignorance perpetuates these sorry excuses for jurists' behavior.
There is something that helps to perpetuate the people's ignorance though, and that is the misleading language that is commonly used today when judges are characterized. A good example of this is an article that appeared in "USA Today" about a month ago, in which they provided a synoptic biography of each Supreme Court Justice. Now, just give a listen to the adjectives used in the piece and see if you can detect what's wrong with this picture.The writer says that Clarence Thomas is a man who believes "that the outcome of a dispute turns on the original meaning of the Constitution." Really? Wow, he must be some kind of radical. Uh...what other meaning could the Constitution have? Are we supposed to assign some meaning to the Constitution, and if so, who should do the assigning? The judge? Those who appointed him or grease his palms? Elmer Fudd or Little Bo Peep? Or, does the Constitution say, "Hey, after Woodstock in the 60's I had an epiphany and decided to change my meaning?" It's a piece of paper! It means what its framers, and no one else, intended for it to mean, and newsflash folks: they're dead - as they used to say in the old neighborhood "they ain't changin' nuthin'."
Another word that is applied to a justice like Thomas who simply tries to determine what the founders actually intended is that of "constructionist." Again, this is a person who actually abides by the meaning of the Constitution as opposed to spinning it to suit an agenda. In the same vein, the writer says that Justice Scalia has "rule-oriented views." I want to make a startling revelation folks...I'll whisper it: the Constitution is a set of rules! And no, rules are not there to be broken - they are there to be followed. The purpose of having rules is to make things fair for everyone; once you start to disregard the rules you become arbitrary and unjust - and that's a characteristic of banana republics.
On the other hand, Justice Steven Breyer is described by the writer as "A liberal-leaning, pragmatic justice..." Now, "pragmatic" is what you could describe as a verbal Trojan horse; what it really means is that the judge doesn't care about what our Constitution states but rather interprets it in ways that tickle his fancy. I must reiterate, when judges do this they are trampling upon OUR rights and are thwarting OUR will. Our Constitution is the supreme law of the land, but when its meaning is departed from we are no longer governed by the stabilizing dictates of the Constitution, but rather by the mercurial whims of unelected officials. We then are then no longer a government of, by and for the people, but rather a government run by a cabal of jaded, imperious social activists disguised in black robes. By the way, we wouldn't even think of accepting this kind of shenanigans in most other areas of our lives. I mean, imagine if we played a tennis match and I told you I was a "pragmatic player." Then I started to call good shots out when I needed points, with the reasoning that I don't have be so narrow as to be "rule-oriented." Then I started bending other rules to my convenience and said that there was no reason to be hamstrung by the original meaning of the framers of the rules of tennis. Would you want to play with me? Or, would you rather arrange a game with a "constructionist" tennis player, hmm?
I don't think you'd at all relish the prospect of having to contend with such unsavory behavior. But if you were a dishonorable person you just might want just such a snake on your team, and this is exactly why many people are actually in favor of these unjust justices. You see, certain folks just don't believe in the Constitution, and they know that a majority of the rest of us won't agree to alter the rules in their favor through the amendment process. And, since these people aren't decent enough to play the hand they're dealt, they instead try to get a dealer who will ignore the rules of the game and throw them a few aces. Well, I for one am sick and tired of all the double-talk and euphemisms. This isn't being pragmatic - let's call it what it is: cheating.
The problem here is the common one of the manipulation of language. In reality, the designations "constructionist" and "pragmatist" should be eliminated, because they do nothing but confuse the issue. The truth of the matter is that there are only justices who do their jobs and those who don't; justices who abide by the rules and those who don't, and justices who belong on the bench and those who should be benched. Of course, if you're astute you'll sense the manipulation that's occurring here. After all, you can't very easily justify the actions of a judge who is "not doing his job," but if you apply to him a scholarly label like "pragmatist" you've sanitized him. Then all you have to do is start calling those who do their job "constructionists" and you've placed them on an even keel - you've made them sound like two sides of the same coin. You've lent the justices who want to impose their own values on the rest of us credibility by placing them with legitimate jurists under the heading "Justices with Different Legal Philosophies." I'll tell you though, this all reminds me of when famed economist Milton Friedman was addressing the issue of different kinds of economists, such as Neoclassical and Keynesian. I'll never forget his incisive response and a variation on it is fitting here: there are only two kinds of justices - good justices and bad justices.
