06/16/2004 Entry: ""
Posted by Maynard @ 11:42 AM MST
Why I vote the way I do - Dred Scott
The Judicial Branch of our Constitutional Republic is as necessary as the other two branches. It must be filled with justices that insist on that necessity but do not abuse it to the point of usurpation of the powers the Constitution separates.
Most people don't know that the Supreme Court of the United States is not explicitly granted the power to interpret the Constitution. Perhaps that was an oversight by the Founding Fathers, perhaps not. I believe they thought the Constitution was clear enough regarding the jurisdiction of the court that they didn't need to specify that any branch explicitly had the interpretation power. That all changed with Marbury vs. Madison, the first case to come before the Supreme Court.
John Adams appoints some judges right before he leaves office. Jefferson, his political opponent, refuses to let his secretary, Madison, deliver the appointments after he takes office. One of the judges, Marbury, sues Madison and takes the case directly to the Supreme Court. Justice Marshall points out that the Constitution says the court has appelate jurisdiction in this type of case and he can't rule on it immediately. He remands the case to a lower court and basically gives it the same treatment that the Supreme Court did in the Pledge of Allegiance case (ruling on a technicality, not the issue at hand).
This event opened the door to the SCOTUS interpreting the meaning of the Constitution, and it did it in a clear, correct way. Justice Marshall followed the literal meaning of the Constitution and ruled fairly and according to the law. Since then, numerous judges, at all levels, have both followed and ignored his example. Notably, the Dred Scott decision incorrectly claimed that a citizen of a state (Scott) was not necessarily a citizen of the United States. This ludicrous claim flew in the face of the Full Faith and Credit Clause, as well as the philosophical foundations of Federalism.
Justices, being human, are prone to error, but that does not mean they can't decide correctly. The Constitution is meant as a set of rigid guidelines for the operation of the government, not as a "living document" that can change without democratic agreement and be interpreted as the justices wish. The Ninth Circuit Court is one of the most egregious examples of flexible interpretation in the land. Its decisions are, more than any other court, reversed by the SCOTUS, and it has the ignoble moniker of "The 9th Circus". Take, for example, Elk Grove United School District v. Newdow, the infamous 9th Circuit "Under God Case". This is not a case of strict Constitutionality, per se. But it does illustrate the extent to which bad judges can and do ignore the law for the sake of their activist revising of the law.
Newdow is the father of a child in the Elk Grove USD. He objected to the mandatory recitation by his daughter of the Pledge of Allegiance, since it included the phrase "Under God", which was inserted by an act of Congress. The case went to the 9th Circuit, which ruled that the act of Congress was unconstitutional, since it constituted an establishment of religion.
Which religion it established was not clearly identified.
The case was appealed to the SCOTUS, where papers were filed by the mother of the child which identified her as the sole legal guardian of the child. The decision came back relatively quickly, and unanimous: the 9th Circuit erred in hearing the case since the father had no legal standing to represent the child. That the 9th Circuit was so eager to hear the case and decide in favor of the father that they ignored the fundamental legal principle of standing before the court.
There are other cases like this with the first amendment, where a plaintiff claims an infringement of the nonestablishment clause and the court agrees, but fails to realize that the decision impedes the free exercise rights of the defendant. In essence they claim Peter robbed Paul, and punish Peter, even though he was doing nothing more than exercising his Constitutional freedoms.
The abortion cases of Roe vs. Wade and Planned Parenthood v. Casey are further examples of the way activists judges manipulate Constitutional law for the sake of social activism. If the Constitution is to be changed, it should be changed as specified within itself. Since it is the responsibility of the Executive and Legislative branches to select the high ranking judges, I only vote for those offices people who support and advocate Constitutional restraint, not social activism.
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