The Tyranny of Judicial Lawlessness

Our justice system has abandoned the rule of law.

My job is to call balls and strikes and not to pitch or bat.

- Chief Justice John Roberts

Over the past several decades, Americans have gotten used to holding their leaders and institutions in contempt.  You will search high and low before finding anyone who thinks most Congresscritters are fit for anywhere other than prison.  Our presidents have become used to large numbers, even majorities, of Americans disdaining them.

The one institution that has been somewhat immune to this general disgust is the judges of our judicial system.  It's time for that to change, and for unelected judges to join the rest of our elites in the national doghouse.

Wait, What?

Most Americans still have a residual sense that judges to some extent do represent the ideal of impartial justice.  Yes, there is the occasional rogue judge, or wrongful conviction; any human institution will make mistakes.  Generally, though, the ordinary American still feels that "justice is seen to be done" more often than not.

This view of things has suffered some devastating knocks in the past few days.  It's one thing not to be able to follow the intricacies of corporate law or high finance.  It's quite another for judges to come out with opinions that any child can see are nonsense.

Judge Bolton in Arizona, for example, came up with this implausible rationale for voiding the overwhelmingly-popular SB 1070 requiring police to check for and arrest illegals:

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully present aliens because their liberty will be restricted while their status is checked.

It does not take a law degree to perceive the absurdity here.  Yes, obviously, innocent people are inconvenienced when the police question them in search of a criminal.  But only a supernaturally-perceptive detective would be able to unerringly identify the crook first time, without even talking to anybody else!

Timothy McVeigh was inconvenienced while the police, who'd stopped him for a traffic violation, checked and found that he was wanted for mass murder.  No doubt a fair number of other, non-terrorist drivers who turned out to be innocent of other wrongdoing were pulled over that day.  Most voters would agree that the inconvenience was worth it.

Even Sherlock Holmes had to interview witnesses and occasionally barked up the wrong tree for a time, yet Judge Bolton is using that necessary and unavoidable, but mild, inconvenience to legitimate citizens and legal aliens as a means to prohibit the police from catching illegals and criminals.  Rational people have no choice but to agree with Charles Dickens that "If the law supposes that, the law is a ass."

Her contention that the law seizes immigration policy from Federal authority is just as transparently bogus.  The law makes no attempt to define who is and is not an illegal immigrant; it simply requires local cops to ask the Feds who's who.

Federal law already requires legal aliens to carry their identification at all times; Federal law already makes illegal immigration, uh, illegal.  If Congress and the President wished to remove the ID requirement or to amnesty all illegals, they certainly can, but they haven't; Arizona is just helping enforce the laws already on the books.  Murder is a Federal crime, too; does this mean local cops can't inconvenience murderers?

Judge Joseph L. Tauro of United States District Court in Boston came up with another similarly preposterous ruling just a few weeks ago, when he said that the federal Defense of Marriage Act was unconstitutional because it forbade the Federal government from recognizing homosexual marriages that are legal in Massachusetts.

He overlooks the minor point that the state law and the federal law have nothing to do with each other.  Massachusetts has every right to deem as "married" whoever it chooses - though we can't help but notice that the Massachusetts legislature willfully and blatantly ignored its constitutional duty in order to prevent the voters of Massachusetts from having the opportunity to vote on a traditional-marriage Constitutional amendment.

How should Massachusetts' chosen definition require the Federal government to spend Federal money in a way forbidden by Congress?  Massachusetts can offer benefits to those it considers married; it doesn't logically follow that the Feds must use the same definition of marriage or offer the same bennies.  Yet here's a judge saying only the states can define marriage and the Feds must go along, like it or not.

Meanwhile, at the other end of the country, we have a judge saying precisely the opposite.  The Wall Street Journal reports:

A federal court in San Francisco on Wednesday overturned California's voter-approved ban on same-sex marriages, in a landmark case that could eventually lead the U.S. Supreme Court to decide if gays have a constitutional right to marry. U.S. Ninth District Court Judge Vaughn Walker ruled that 2008's Proposition 8 violated the constitutional guarantees to equal protection and due process because it singles out gays and lesbians for denial of a marriage license.

Again, this is nonsense on stilts.  Homosexuals have exactly the same right to marry that anyone else has: they can marry one person at a time, of legal age, who is of the opposite sex and not their cousin.  Nobody has "a right to marry who they love" if it's their sibling, or if they're already married, or if she's in 5th grade.  The law applies equally to all; the "equal protection" complaint is utterly fatuous.

The fact that he is himself involved in a long-running homosexual relationship and might very well be desirous of a marriage like the people of California tried to ban, is naturally not fit for public discussion.

More to the point, though, is that Judge Walker says a state cannot define marriage - at least, can't define it in a way he doesn't approve of.  California has expressed the people's will in the most direct and authoritative possible fashion, by a constitutional amendment approved by referendum, and this judge finds the constitutional amendment unconstitutional?

One shudders to think what Judge Walker would think of the Thirteenth Amendment, which abolished slavery.  The original Constitution expressly did not forbid slavery; the right to own slaves was reserved to white people as long as it was OK with their state.

The Thirteenth Amendment abolished this very valuable right; that was kind of the point.  By Walker's logic, a constitutional amendment banning slavery is itself unconstitutional because it revokes a previously existing right.

We all know, of course, that Judge Walker would never in a million years even think such a thing much less actually rule it.  These contradictory judgments have no common basis in the law or any unifying philosophy; intellectually they're all over the map.

The one single, solitary thing that unites them is a commitment to far-left liberalism - the law, logic, consistency, and the People's Will be damned.

Unless, of course, they can change exactly who The People is, by importing a new set more to their taste.  By refusing to deport illegal immigrants and refusing to allow local authorities to do so, our elites are trying to "pack the vote" with a more pliable electorate.  It's long been suspected that illegal immigrants are a prime source of vote fraud, but even if this isn't so, they are certainly a prime source of "anchor babies" with no valid claim on American citizenship.

No valid claim?  What about the Fourteenth Amendment, which guarantees citizenship to anyone born on US soil?  Actually, it doesn't, and it didn't until - guess who! - a leftist judge created a phony "right" out of whole cloth in 1982.

Republicans trying to change the Constitution and fix the problem have, alas, already swallowed the lie of the Left.  There's no need to change the Constitution, merely to roll back the willful misinterpretation of it and return to its clear, logical original intent.  Even if a new Constitutional amendment could be passed, does anyone serious expect that it would not receive the same dismissive treatment just meted out to Californians who tried the same thing?

Unlawful Law and Unjust Judges

All these miscarriages of justice will surely be appealed to the Supreme Court.  For a few years now, the Supremes have served as a last backstop against judicial overreach, even rolling back a few instances of stolen power.  Time, however, is not on our side; with a slap in the face to the American people, the Democratic Senate just seated Elena Kagan for life on the high court, despite her openly saying that there are no limits on Federal power and the Constitution means nothing in particular.

What we are watching today is neither justice nor the rule of law.  It is judicial tyranny pure and simple, unchecked by any democratic accountability.  Indeed, the whole purpose and intent of these judges is to disregard the desires of the American people, because what the American people want is not what the exalted elites know to be best for them.

What sort of liberty is this?  And what's the solution?  The Constitution provides for impeachment, but since we don't seem to like that one, our Founders were fond of a somewhat more forceful solution: tar and feathers.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Politics.
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