Tuesday, October 6, 2015

Judicial Activism

A friend asks:

You have hit on one of my big questions lately: what is so freaking wrong with looking at judicial opinions from other countries? or any other social ideas? if something is a good idea, does it matter where it comes from? i'm not saying adopt other laws/judicial ideas wholesale, but to outlaw ANY inspiration from any outside source? that seems unnecessarily harsh, and even a little short-sighted.

To which I reply:

Nothing- if the legislature does it. The reason for this is obvious: the legislature is elected by the people and serve subject to the public pleasure, therefore they reflect the will of the people (and any 'evolving standards of public decency'). The Supreme Court (and some other judges) are appointed, and in the case of the Supreme Court sit on the bench until they choose to leave (subject to impeachment, a difficult process to remove someone.)

Our law proceeds from our constitution, unique in the world for being the first and most lasting of its kind, which has specific requirements built into it that provide a web of protection for individual states' rights as well as individuals (not just a specific and unique instance of trying to make a point in an individual case, but an integrated context). This ensures that our country accepts a variety of community standards, each of which is an experiment in social order running in parallel with all the others, but all congruent with the greater principles of democracy and liberty because they are subject to one basic law of the land. If we start making exceptions to the basic principles of our constitution, it becomes meaningless and all those protections and inter-dependencies collapse.

Also, many other countries have high-sounding sentiments in their laws, but that doesn't mean they actually live by them. If they don't live by them, how do we know that they actually work as social practices?

Anyway, the court's place is not to enact law, merely to interpret and apply it. This principle is clear, with only the most basic understanding of the 'checks and balances' system. And yet it is more and more accepted to legislate from the bench, and to twist the intent of the Constitution and the law by the most tortured of grammatical constructions and twisted logic, as well as feel-good 'consensus opinions'.

If public standards evolve, the way to account for and acknowledge that is through the legislature. If the Constitution is outdated or wrong, there is a process to amend it and any other way of 'getting around it' is illegal, unethical, and just plain stupidly short-sighted.

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