It's the judges stupid!

The current American governmental system is seriously flawed. As things currently stand we're half way to having a monarchy. The problem is the judiciary. The framers intended judges to decide how a law passed by the legislature was to be interpreted. Unfortunately starting in the 1960's judges decided that they should be able to make laws not just interpret them.

You know the judges are making laws when they decide that what had been constitutional for over a hundred years was suddenly unconstitutional. Clearly if a law had been around for that long, or even 20 or 30 years, and no one thought it was unconstitutional it's unlikely that the law is one that violated what the people who ratified the Constitution thought the Constitution said.

That doesn't mean the law is a good one. Clearly slavery was bad but just as clearly no one who ratified the Constitution saw that document declaring slavery to be illegal. That's why it's possible to amend the Constitution to correct problems, such as slavery. But because changing the Constitution is a big deal, changes effect everyone in the country, the framers made it a reasonably hard thing to do.

But if judges stop deciding what was intended by the people who passed a law and start deciding based on what they think is good then it becomes trivial to change the Constitution. All you need is 5 rich lawyers to agree and voila the law of the land is changed. Look at abortion. For the entire history of the country up until Roe v. Wade it was considered to be unprotected by the Constitution. In fact abortion had been illegal since the US was founded. Yet 5 Supreme Court judges overturned the laws of every single state to make abortion, for any reason, legal through all 9 months of pregnancy. If you support abortion this may please you but it should also scare you. If 5 judges can overthrow laws that have been in place since the Revolution then they can also overturn laws you like. For example if those rascally Republicans get a bunch of sane judges in the Supreme Court they could make abortion illegal again.

I'll be talking about more examples of the way judges have taken over control of the country, do you know that in St. Louis a judge ordered the legislature to increase taxes?, in later postings but for now let's just look at the huge asymmetry judicial activism causes in the political process.

Out in California about 62% of the people voted for a proposition that said marriage was between a man and woman, not two men or two women. To get that proposition to pass thousands of people volunteered their time and money. A fortune was spent on ads, for and against. Thousands of news stories were written. Millions of people got out and voted. But all of that effort was undone by a handful of California State Supreme Court judges writing a few pages of text. Their few hours work overturned that law saying it violated the State Constitution. Since no one who ratified the State Constitution would have ever even thought of gay marriage it's clearly absurd to think that the intent of the document was to protect gay marriage. As this is being written Californian voters will have another chance to invest millions of person hours and untold dollars into amending the State Constitution the only way to get around the judges, assuming the pro-homosexual marriage crowd can't get the US Supreme Court to overturn the amendment to the California State Constitution.

The problem is the asymmetry. If a liberal activist judge spends a few hours writing he can overturn the efforts of millions of citizens. So judges can wreck havoc with the law in a matter of hours while fixing the mess they make takes an incredible investment of time and money.

What has happened is that the checks and balances that were supposed to limit the power of the judiciary have broken down. Why? Well politicians tend to be more liberal than the populace. So if the Supreme Court institutes some liberal policy which the politicians support but which they know it would be political suicide to vote for it's nearly impossible to get enough politicians to impeach the wayward judges. Without impeaching judges there is really nothing stopping judges from concluding whatever they want. They essentially have unlimited power.

Now if you're a liberal you probably don't care because the judges are doing what you want. But he who lives by the immoral judge dies by the immoral judge. If at some time in the future a Supreme Court rules that gays should be put in camps liberals will have no basis for objecting. If you believe the Supreme Court can rule anyway it wants on anything none of us are really free and we don't have a democracy any more.

If the judges decided happens in the country the only thing that matters about a candidate is what sort of judges he'll select or vote for. Amazingly enough the liberals who get so worked up about the electoral college have no problem with this.

So what's obvious?

Activist judges can destroy democracy by short circuiting the election process and mandating changes in the law based on whatever 5 rich lawyers think is best.