Wednesday, December 17, 2003

I'm a little late on this, but Thomas Sowell did a column yesterday on judicial tyranny that I just cannot recommend highly enough. In it, he examines the recent Supreme Court ruling on the McCain-Feingold campaign finance law:
If you think the issue in the recent Supreme Court decision upholding campaign finance legislation is whether campaign finance reform is a good idea or a bad idea, then you have already surrendered the far more important and more fundamental idea of Constitutional government.

There is nothing in the Constitution of the United States which authorizes Congress to regulate what is said by whom, or under what conditions, in a political campaign. On the contrary, the Constitution says plainly, "Congress shall make no law" -- no law! -- "abridging the freedom of speech."

The merits or demerits of this particular law, restricting what you can say when, or how much money you can contribute to get your message out, are all beside the point. Just what part of "no law" don't the Supreme Court justices understand?

The sad -- indeed, tragic -- fact is that they understand completely. They just think that this legislation is a good idea and are not going to let the Constitution stand in their way.
It occurs to me that we conservatives are going to have to get on the same page if we're ever going to solve the problem. We largely (though unwittingly) buy into the activist court mentality ourselves, and thus forfeit the war in favor of a few individual battles.

A case in point: the recent case of Joshua Davey, who sued the state of Washington because they revoked his college scholarship on the grounds that paying for his theological course of study violated the so-called "separation of church and state." On the surface, it sounds like an egregious case of religious bigotry.

But there's a problem--the state of Washington has an amendment in it's constitution which clearly says that no public money will be used to finance a religious education. Is it a bad law? Perhaps. But whatever it is, it's part of the constitution of the state of Washington. Davey, his lawyer Jay Sekulow, and the Solicitor General of the United States are asking the U.S. Supreme Court to rewrite Washington's democratically-encated constitution by decree. They are actually in a postion of begging for judicial activism from the Supreme Court.

The irony of this, of course, is that when the Supreme Court rewrote the Massachusetts state constitution in the recent gay marriage case, conservatives (particularly conservative Christians) were (rightfully) screaming bloody murder over the Court's unconscionable activism in overruling the people of that state, as expressed in their constitution, by mere fiat.

"If you want to change the Constitution," we're always insisting, "do it through the prescribed, democratic means, not by judicial decree." But then a state constitution comes along that says something we don't particularly like, and suddenly we're first in line to find a judge to impose the "correct" viewpoint on an entire state. Ought we not abide by the democratic principle even if we don't happen to like what a particular law happens to say?

As Sowell says:
One of the tragedies of our time, and a harbinger of future tragedies, is that court decisions at all levels have come to be judged by whether we agree or disagree with the policy that is upheld or overturned.
If we're basing our view of what the courts should do on the basis of whether a particular law is a good idea or not, we've already given up the game. For every outcome that goes our way, there will be literally dozens that go against us. Some of those bad decisions might even use Davey as a precedent for judicial activism, and there won't be single objection we can raise.

No comments: