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The Judiciary and
Activist Judges

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In 1819 Thomas Jefferson gave America this warning: 

"The Constitution . . . is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please." 1

Evolving Law, with no moral Right or Wrong:

For the first hundred years of American Independence, the Constitution was considered the Law of the land.  Toward the end of the nineteenth century Charles Darwin wrote his famous book "Origin of the Species."  The dean of the Harvard Law college, Christopher Columbus Langdell, read Darwin's book, and he reasoned, if man evolved from apes then law should also be an evolving idea, which changes as man changes. By the beginning of the Twentieth Century, the concept of Legal Relativism began to be formulated.  The encyclopedia describes the basic tenets of relativism:  

A widespread and familiar form of skepticism is ethical relativism, the view that there is no one correct moral code for all times and peoples, that each group has its own morality relative to its wants and values, and that all moral ideas are necessarily relative to a particular culture.  According to this view, cannibals are justified in eating human beings by the standards of their own culture even if not by the standards of Western culture, and there can be no basis for claiming that the standards of Western culture are superior to theirs 2  
Man is the measure of all things, and . . . each man [can] be his own measure. . . . [C]annibalism, incest, and other practices considered taboo are just variant kinds of behavior, to be appreciated as acceptable in some cultures and not in others. . . . [Relativism] urge[s] suspension of judgment about right or wrong. 3  

The display of the Ten Commandments is offensive to many court judges because it points to moral values of right and wrong, which is contrary to Legal Relativism which many judges adhere to.  Christopher Langdell formulated a system of Case Law, 4 in which Judges would no longer refer to the Constitution as the cornerstone of our law, but would refer to other Judge's rulings in other cases.  As time goes on there are more and more court cases to draw opinions from with more and more divergent ideas with no standard for right or wrong. 

You may remember as a child playing a game, were a number of children sat in a circle.  A short message was whispered to one child.  This child then whispered the message to the next child, then that child would  repeat the message to the next child.  This would continue on until the message had traveled around the circle.  The  original message would then be read to the group and then compared to final repeated version.  The two messages would have little if any similarity and everyone would laugh.

Case law is a similar idea.  You get each Judges opinion from another Judge as to what the Constitution means, never going back to the source.  Eventually you have a wide array of "case" opinions with which to chose from both pro and con on just about any situation. As the Twentieth Century began, the concept of Legal Relativism and Case Law were taught in more and more law schools across America.  Today on the Supreme Court, six of the nine Justices believe the Constitution can be rewritten from decision to decision, depending on the current national or worldwide trends.  Recently Justices Breyer and Ginsburg (Clinton appointees) for the first time cited foreign legal precedents as primary authority for its decision.  We no longer look to our Constitution as the cornerstone of truth but, to other countries which have decriminalize conduct which the majority of American's consider immoral, and thus, the Texas sodomy law was overturned in 2003. 

Judicial Activism:  

Charles Evans Hughes (1862-1948), the Court's Chief Justice from 1930 to 1941, declared that:

"We are under a Constitution, but the Constitution is what the judges say it is." 5

The concept of the Constitution being an organic document that changes through time and can only be interpreted by judges is a widely held view in the judicial system today.  This view by the judiciary is similar to the medieval Catholic Church view, which held that only priest were able to read and interpret the Bible for the people.  This is an elitist view point which says only judges on the court are worthy or capable of deciding what is right for the people.

[T]he Court has taken sides in the culture war, departing from from its role of assuring--as neutral observer--that the democratic rules of engagement are observed. Many American do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. Supreme Court Justice Antonin Scalia

Six Supreme Court Justices have chosen not to be good citizens willing to acquiesce to the choice of the majority; but rather, they prefer to place their own will above the will of the People.  This can be seen in decision after decision which the court heavy handily stiffs Religious Freedom, and overturns the Constitution's First Amendment.   This spite for all things Religious is directly opposed to the will of the People, the majority who believe in God. 

the Court’s opinion; it bristles with hostility to all things religious in public life. Santa Fe v. Doe descenting view by Supreme Court Chief Justice William Rehnquist

Judges all across America are quick to declare a law Unconstitutional if they feel it does not meet their view of how things should be.  As an example, in November of 2004 President George W. Bush signed into law a ban on Partial Birth Abortions.  This Bill had taken many years to draft and pass through the Congress, and the majority of the People support this ban, yet within one hour of the President signing the bill ONE judge was able to block the law from going into effect!

Most Federal Judges are appointed for life, with little fear of impeachment.   They do not have to answer to anyone, and so the abuse of their positions goes unchecked.  I agree with the words of Thomas Jefferson at the top of this page and below. 

"It has long, however, been my opinion, and I have never shrunk from its expression . . . that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; . . . working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped." Thomas Jefferson  

I believe that the time has come to correct this apparent flaw on our Constitution that allows Judges to go unchecked subverting the Constitution of the United States.  The approval process of judge nominees in the Congress has become so politicized, split along party lines, which has led the Democrats to mount a filibuster against the Presidents Judicial Nominees: thus blocking a vote in the Senate.  Since many judges feel they are in the business of creating laws rather then interpreting the Constitution, I feel it is time to make them accountable to the People.  Congress has a new bill which addresses this problem. . .

Last Update Jan.  2009  

1. Who's Looking out For You, by Bill O'Reilly
2. Grolier Multimedia Encyclopedia, Rel. 6
3. The Encyclopedia of Religion, (NY: MacMillan Pub. 1987)
4. Original Intent, by David Barton
5. Original Intent, by David Barton
6. Original Intent, by David Barton