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ATLANTIC HIGHLANDS HERALD |
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DEFEATING JUDICIAL TYRANNY In a recent article, “Tyranny of judicial taxation,” (1) former Congressman Bob Barr spoke of the danger “judicial taxation” represents to our liberty – all within the context of a recent ruling by the Kansas Supreme Court. As Mr. Barr put it: “The Kansas Supreme Court has just ruled the state's democratically established level of education funding was… constitutionally inadequate, and ordered the legislature to cough up more dough.” Mr. Barr described the court’s reasoning as flimsy, and he is right that the ruling is intolerable and dangerous. But I believe he should direct some of his alarm at legislatures which support the charade of judicial “authority” to make such rulings. There is no such authority. The powers of the three branches of government over each other are clearly spelled out in the Constitution:
The states follow this same model in their constitutions. In recent years, activist courts have exhibited a tendency to rule where they lack authority. Political factions often applaud such excursions for their own purposes, knowing that matters thus “enacted” could not be passed by the legislature because they lack popular support. The Kansas Supreme Court “directing” the legislature to raise taxes is such a case. Alexander Hamilton called the courts the “weakest” branch of government. We chuckle at this now because the courts seem so powerful. They are rampant on the political field. Just last week an individual sued in Federal District Court to prevent prayer at the presidential Inauguration. The media, the Congress – the whole country, really – held their collective breath to see if the courts would “allow” the customary invocation and benediction during the ceremony. We trembled at the power of the courts to deconstruct yet another cherished tradition of our culture and history. But this is nonsense. Courts cannot “rule” over the Executive branch (or over the Legislative branch) in this way. Even if the court had ruled against prayer, the president need not obey with respect to his own inauguration. This is beyond the courts’ jurisdiction. Actually, Hamilton was more correct than we currently understand. The courts are weak, for they lack enforcement power outside of the judicial system. They have no police, no army – no power of sword or purse. They depend on the good will of the other branches to enforce their directives. That good will worked for a long time. The courts made (mostly) sober, well considered rulings which the other branches enforced. Now, however, the whole “gentlemen’s arrangement” threatens to collapse because the courts have overstepped their role. Judicial adventurism has caused a swelling constitutional crisis which must finally come to a head. No doubt, Mr. Bush’s advisors breathed a sigh of relief because they did not have to defy the court on this occasion. But eventually they will, as the courts continue to spin out of control. A showdown with the other branches of government is inevitable. It can only be a matter of time until a state legislature realizes that rulings like the one in Kansas are bogus and should be ignored. If the Kansas legislature defies the court, what will the court be able to do? Hold legislators in contempt? Sue? Send the sheriff to arrest them? Indeed, such a case has appeared in a dispute over the seating of Democrat Virginia Woodward in the Kentucky State Senate. Miss Woodward lost the recent election to Republican Dana Stephenson, but it was shown that Miss Stephenson had lived in Indiana for four of the past six years. Thus, she apparently failed Kentucky’s residency requirement. Jefferson Circuit Judge Barry Willett ruled that only Miss Woodward's votes should be sent to the election board, making her the ostensible winner. Despite this ruling, the state Election Board has not certified Miss Woodward. Senate President David Williams refuses to seat her, citing the Senate’s authority over who should be seated. The court’s ruling has been ignored. (The dispute remains unsettled.) Like most politicians, Mr. Barr has been brainwashed by conventional political wisdom into believing in court supremacy. He thinks court overreach can be stopped only by finding judges who will “behave”. He fails to see that the solution to judicial tyranny is already available. When courts make silly rulings – e.g., that men must be able to marry men, that citizens may not speak the name of the Christian God, that perversion must be taught to children in the public schools, that a legislature must enact a judicially dictated agenda – the effective response is Nothing. Legislatures should not act. Executives should not execute. The People should not obey. A thundering silence is all that is needed to defeat acts of judicial overreach. All branches of government derive “their just powers from the consent of the governed”. The courts’ “power” to rule outside their defined purview is an illusion because it is unjust. This will be realized when a judge tries to jail a school principal for contempt because he permitted a Christmas carol or tree at his school. The people will not countenance such outrages. Their disobedience will break the tyranny of the courts. The only question is when it will happen. When it does, politicians like Mr. Barr will not lead the way. They are fully vested in the current system and have too much to lose. Other leaders will have to arise, as they did in 1776. The Patriots of ‘76 did not create a nation by mindlessly saluting every silly law put forward by the British Crown. Their limit was a tax on tea. What will ours be? Our republic, as Mr. Reagan famously observed, is not a ‘suicide pact’. ******* (1) “Tyranny of judicial taxation”, Washington Times, 1/14/05. (http://washingtonti mes.com/commentary/20050113-091120-3054r.htm)
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