April 6, 2005.
By Pascal Fervor
I will try to keep this short. I have two demands that I think will carry considerable political force if some of us will only try to build up a bloc that presses them. I doubt that I am the first to suggest much of this. But since there seems to be no sizeable body that is marching towards a solution, I'd thought I shake the bushes and see if anybody is out there who is really working hard. Maybe now they're disappointed or even angered that I don't know how much and what they've tried to do already.
I don’t wish to make the case entirely from my own perspective. Arguments that support the ideas I’m presenting have been made, but we don’t see much real action. That we are witnessing a more rapidly activist and arrogant judiciary each and every year proves my point.
Judges used to speak of self-restraint as a requirement to prevent “the independence of the judiciary” from being eroded. They and their apologists still demand their independence, but they appear to no longer fear anyone curtailing their power. They need to feel some political heat if they’re ever going to retreat to their more respectable former status as referees and not partisans.
This subject needs wide discussion. We can’t wait for mainstream media. And we know from experience that forever requesting that the professionals address these grievances is a fool’s errand. We, the people of the United States, have a series of grievances with our ever-expanding Leviathan. If we are patriotic to the American ideal of being the land of a free and independent people we must not let up. We really need to put to the question a redressing of at least these two grievances.
Ban the notion that our Constitution is “a living document” from any legal decision.
- Reestablish the notion that the only way within the Constitution to properly alter the Constitution is through the Amendment process.
- At the proper time, call for review of all decisions that relied on this meme.
- Label as dishonest and malfeasant all who allow the bending of words’ meaning to go too wide of their initial intentions as described and argued over when the law or constitutional article was enacted.
- When special cases cause two or more laws to come in conflict, of course judgments must be rendered which elevates one legal precept over another. But hard cases should not be allowed to form the basis of throwing out any law simply because it lost predominance in one or two cases. The contrary formula to such a common sense approach has permitted narrow partisans to overturn some very important laws and customs without benefit of more thorough and inclusive arguments let in to influence the outcome.
- Declare as outlaws all who have effectively expanded government’s reach without putting that expansion to open discussion and proper vote. Such actions should be treated as no better than an agreement among a narrow band of collaborators aimed at undermining the constitution. It is the type of action one would expect of kangaroo courts, star chambers, and tyrants, and not of conscionable and noble public servants.
- Any judge or justice who uses this phrase to allow government to exceed the limits of the constitution shall be considered to have resigned in ignominy. They are no longer upholding their oath of office.
- Give back to our Constitution its due process for alteration before the collaboration of nibbling rats have decimated it entirely.
Call for a legislative review of suspect case law. Case law establishes rules that effectively govern us. But it is arrived at within the purview of a narrow band of experts, and currently remains outside the auspices of democratic review. In other words the people must currently live under domination of rules decided by a select few. Judges have even meted out taxation without representation. That was a primary reason for the original American revolution. Well, it's been back for some time, and all we hear is moaning a groaning but no solutions.
Much of case law's excess comes about when notions of justice are bandied about solely amongst the legal classes. This is done without the result being put up for review by the people. Legalists claim to represent the best interests of the people, but at the same time they are jealous of their power. The people, whom the legalists claim to be protecting, are not currently permitted to say, through a vote, “you judges are not speaking as we see fit and, frankly, you have exceeded your authority; good bye.”
Times have changed and unchecked power has corrupted too many. Some clearly need removal. Like Californian's removing Rose Bird and some of her comrades. Why can't Californians and much of the rest of the West get similar relief from the more pernicious members of the Ninth Circuit Court of Appeals? Perhaps a super majority could be required, but some real threat needs to be put into place, because what is there now is woefully inadequate.
- Barring major legislative challenges (our legislatures seem to shrug time and again on this demand), a plebiscite review of case laws needs to be encoded into constitutions. The proper place for this to start is at the state level. Ultimately, if the elected officials don’t check the arrogance of the judiciary, for whatever excuses they evoke, then it must be permitted that the people can do it.
- If nothing else, elected official’s denial of our demand for reforms would put an end to the illusion that this is a democratically backed constitutional republic. Our form of government may then at least be seen honestly for what it has become for the different factions who have gained power in the current formation.
- The judges seem to think they’re running a Platonic republic. “Concerns of lesser mortals need not be taken too seriously.”
- The moneyed interests and power brokers appear to be benefiting from a sort of Roman republic reborn. “You’ve got your improved standard of living and entertainment; just shut-up!”
None of those formats, actual or considered, ever prevented tyrants from gaining control of the civilizations which created them. Are you sure that not too many of our leaders are convinced that the world is so overpopulated that only “useful people “will be permitted to retain their right to live? I am do not share your certainty. Today our rulers may be relatively benign, but tomorrow is another day.
I reiterate, my stated reasons for these two demands were formulated with the hope that they provide a basis to start the argument. What I pray is that more compelling ideas will result from this and carry some considerable force to effect the needed changes.
Think some or all of my suggestions are too extreme? Yet is there any real doubt that those in power need to feel more uncomfortable and in very real fear of removal than they currently do? Then proffer some alternatives. And keep in mind that moving to radically remove the worst will assuredly get the rest to think about curtailing their own tendency to excess.