Who Shall Govern?
Donald Sensing has an excellent essay on the frustrations of judicial activism in general, and the Massachussets ruling on gay marriage in particular:
The court’s ruling to permit homosexual marriages will go into effect this May regardless of what the legislature does. Even if the legislature passes today an amendment to the constitution prohibiting homosexual marriage, the earliest the amendment could take effects is late 2006.
In my opinion, this ruling is as clear a case of judicial overreach and activism as can be found. The idea that the constitution’s framers had homosexual “marriage” in mind when they wrote the constitution, so long ago, is simply ludicrous.
Agreed. Regardless of the merits of the issue–and I’m more in agreement with the judges than the legislators on this one–the process here turns the system on its head.
In the American Constitution, there are more and more effective checks and balances of the Congress and the President against one another than either branch combined has against the judiciary.
The Founders unambiguously understood that,
“The Judiciary is beyond comparison the weakest of the three departments of power” (Federalist 78), the power of the Congress was to be superior to the judiciary (Federalist 51), the Congress, not the courts, was to be the safeguard of the rights and freedom of the people (Federalist 49).
What has happened over about the last four decades (Scalia’s timeline) is that the belief in a “living” Constitution has politicized the appointment process of judges to a much greater level than ever before. Instead of the national and state legislatures confirming judges on the basis of whether they will conform rulings to the constitution concerned, they are insisting that the judge ensure his reading of the constitution comports with the legislators’ own political agenda.
In so doing, the people are shunted aside. The power to make the most major decisions affecting the order of society are taken from their hands by subterfuge. Increasingly, our votes at the ballot have less and less effect on what happens in government – and thus, what happens to us.
The irony is that the Judiciary is indeed the least dangerous branch, in that it has no real power to enforce its dictates. Presidents could–and in rare instances have–simply refused to use the tools at their disposal to enforce judicial orders. And Congress is under no obligation to fund judicial whims, either.
Also, Article III gives Congress the explicit power to limit the jurisdiction of the courts. It’s a wonder it isn’t used more.