Transparent Government
We have heard much about “transparency” lately in reference to the behavior of corporations. As important as this is in corporations it is far more so in government. Nowhere is this more crucial than in the courts. We are a nation ruled by laws, or so it is said. Over the last several years, though, dozens of President Bush’s nominees to be federal judges were held up by the Democratic Senate leadership not because they opaquely intended to do strange things in secret but because they have shown they will do what the Constitution of the United States of America says they must do. This is, according to Judiciary Committee Chairman Patrick Leahy, a Democrat, a step backward! Many of us believe judges must not make law. To permit, let alone encourage, such a thing makes judges into kings. We believe the people’s representatives, and only they, may make laws. When judges take that burden from them legislators are free to pretend they are doing the people’s business and then profess powerlessness at unpopular decisions of the courts, regardless of the position of their party. Those life-tenured judges are terribly important. If they become law makers nothing you do as a voter means anything. To an "activist" Supreme Court, that is to say a court which believes itself to have the power to make law, even a Constitutional amendment would mean nothing.
Those who support what are called “strict constructionist” judges do so because their decisions could not alter the meaning of the law except in cases where a given law was in conflict with the Constitution itself. Even then constructionists do not rewrite law. They strike laws or provisions of law which are unconstitutional.
How is this important? Consider this. If you are too poor to hire a lawyer one will be appointed for you as the result of a “prison lawyer’s” appeal. This is so because a common prisoner read the sixth amendment and saw the words... “...the accused shall enjoy the right... to have the assistance of councel for his defence.” He filed an appeal of a wrongful conviction based on these words and won in the Supreme Court. You are made freer by this process which gives access to the courts to the lowest members of society and keeps law understandable for those of us who care to study it.
Contrast that with an activist court such as the Supreme Court of New Jersey which can see a law which says no one may be added to or taken from a ballot within 55 days of an election and simply ignore that law. You may agree with what they wanted to do, but to look away and allow them the power to do it also empowers them to do far more ominous things. The 50’s court that made lawyers available to the indigent was doing a thing it didn’t much want to do. There is evidence the majority of the court’s members even thought the decision was a wrongheaded one, but the words were plain on the pages of the Constitution and they abided by them. An activist court could simply have ignored them.
Nothing good that has been gained by the conjuring of activist courts will be lost to the elimination of their corrosive power. The pressure to keep those good things will fall where it should fall- on the elective process. Elections become referenda on how people will be governed. Your opinion, and your vote, count for something. Your legislators create laws that are binding even on the powerful.
This makes "learned" people uncomfortable. They fear the rule of the "mob" in matters of great social importance. Look through the annals of the fears of such learned folk when they are able to negate the people's will and what they consider the mob seems to grow to vast majorities of the populace, particularly when they favor policies vastly unpopular among the people. This represents the very essence of opaque governance. Elections become irrelevant. Laws become suggestions. Rulers become tyrants. You citizens become property.
The courts are charged with keeping transparency in our government. Judicial activism makes government murkier and encourages corruption. Most importantly, this distrust of the most basic of democratic principles takes away powers that have the effect of self-educating a population into comprehending the dangers of poorly exercizing their franchise.
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