February 14, 2014

Yes, Most Judges Are this Stupid (And why lawyers make terrible Judges of the Constitution)

The judge who just ruled the Constitution requires states to recognize same-sex marriage? Yeah, this judge also thinks the Constitution says all men are created equal:

"Our Constitution declares that 'all men' are created equal. Surely this means all of us," Judge Allen wrote on the first page of her opinion. That line opens the second paragraph of the Declaration of Independence and appears nowhere in the Constitution.
Somewhere Thomas Jefferson and James Madison are rolling over in their graves.

This is also why we can't trust lawyers to know the difference between 'Constitutional' and 'I like it so it must be in the Constitution'. These people aren't taught the Constitution in 'Constitutional Law', instead they are taught what Courts have said about the Constitution.

It's studying the Constitution, once removed. Not studying the object of study itself, instead only studying what others have said about the object.

I'd bet that if you asked a sample of judges in the country if they can name one thing that, say Article VII of the Constitution talks about, that fewer than 10% could do it.

I'd also guess that an even smaller percentage could define 'Constitutionalism' (which is the notion that government can be limited through written charter).

Instead, they are taught 'legal reasoning' -- or how to think like a lawyer. They are then taught case law, which is that 'law' is nothing more than what judges say it is and that it evolves over time. They then apply this 'legal reasoning' and case law methodologies to the Constitution.

But the Constitution can't be read like normal laws nor does normal legal reasoning apply to it. The entire reason for writing down the Constitution was to insure that the will of the people superseded the whims of government. And since judges are government, then deciding what the Constitution means based on what people in government says is very much the opposite of what the Founders intended. It is letting the inmates decide the rules of the asylum.

Don't get me wrong, this is not a diatribe against judicial review. It is a diatribe against judges who are too dumb to realize that normal legal reasoning cannot be applied to the Constitution.

The Constitution trumps normal law because it was 'ordained' (See Preamble and Article VII) by the people. This is at the root of the argument for judicial review -- the sovereign will of the people as established in the Constitution cannot be overridden by agents of the government -- normally state legislatures and Congress. What judges fail to see, though, is that agents of the government included them.

There are three branches of government, not two. Courts are government!

The reason we wrote down the Constitution was to limit what people in government do -- including judges. And because the Constitution is written law that trumps case law, it must be interpreted as written and not as we would have liked it to have been written. It can never 'evolve' because it isn't case law. It cannot mean one thing one day and then something else the next day. There are no 'principles' that trump the actual text of the document. Judges are no more empowered to exercise power not granted to them by the sovereign people than Congress or state legislatures.

This judge needs to be impeached. In fact, all judges that 'find' things in the Constitution that aren't there need to be impeached. If a judge thinks there are Constitutional 'principles' they need to be impeached. If they think the Constitution can 'evolve' they need to be impeached.

If the Constitution empowers the judiciary to check Congress, then it also empowers Congress to check an out of control federal judiciary. Impeach the bastards!

Yeah, I know that ain't going to happen anytime soon. But one can dream, can't they?

By Rusty Shackleford, Ph.D. at 02:14 PM | Comments |