RUNAWAY JUDGES

Justice Kennedy's majority opinion in the recent juvenile death penalty case makes it necessary to point out the obvious: the Constitution of the United States is not the final repository of all that is good in this world and the role of judges in the federal courts is to interpret and apply the Constitution and laws of the United States, not re-write them.

The Framers of the Constitution knew at the time of the Convention that they could not possibly foresee all of the challenges which would face the new national government in the coming decades. With that in mind, they devised a system by which these challenges could be addressed by the federal government composed of three co-equal branches of goverment with certain minimum rights guaranteed by the Constitution. The first ten amendments, the Bill of Rights, was a condition to ratification by several states. The exercise of power by the legislative and executive is subject to the well-known system of checks and balances and faces the regular review of the electorate. Federal judges, once in office, answer to no one except higher courts. The Justices of the Supreme Court answer only to each other.

Over the years the federal judiciary refined a number of doctrines to limit its own power such as standing, ripeness, mootness, and political question. The most important doctrine of all is ascertaining and applying the intent of the framer (concerning the Constitution) or the legislature (in matters of statutory interpretation). The right of the people to govern themselves through the political process is eroded each time a court looks ignores the text and context of a constitutional passage or refuses to acknowledge the Constitution is silent on a particular question and substitutes the judgment of the judge for that of the framer or legislator. No better examples of this are the Supreme Court's jurisprudence concerning abortion, religion, and capital punishment.

It is not my intent to debate here the merits of the arguments on abortion but the Constitution is silent on the matter and nowhere in it is there a basis in its text for divining a right to to abortion, much less a trimester test in Roe v. Wade. In imposing such a ruling, the Court attempted to remove a hot political issue from the political arena and was rewarded with over thirty years of constitutional litigation over questions involving standards of licensing for abortion clinics, minors, parental consent, public funding for abortions, and partial birth abortion. Had the issue been left in the political arena, the states would have eventually worked out the issue to a political resolution where abortion would have been permitted in some states but not in others, subsidized with public finds in some, but not in others, and so forth. With its decision in Roe, the Supreme Court removed this thorny moral and political question from the political branches to the courts which are the least equipped to grapple with it.

Likewise, the First Amendment's establishment clause was meant to bar the federal government from establishing a national church such as the Church of England, not to remove any reference to God in the public square. (Several states had their own state religions well into the nineteenth century.) "The Supremes" gave us the Lemon case some fifty years ago and ever since the federal courts have been dealing with school prayer, graduation prayer, football game prayer, and the annual fights over Christmas displays.

Death penalty jurisprudence has been no better. The Eighth Amendment's prohibition on "cruel and unusual punishment" refers to exotic forms of torture and execution such as the rack, burning at the stake, and crucification. Capital punishment was commonly employed at the time of the Constitution's ratification and no exception was made for juveniles. Over the decades, the states reduced the number of crimes for which death could be imposed and a number abolished it altogether. In each of these instances, the people, through their elected representaives, determined the issue. The Supreme Court's most recent foray into the area now has it relying on foreign courts to interpret our own Constitution and in doing so has diminished our ability to govern ourselves.

Anyone interested in delving into these areas in more detail should read Robert Bork's book: The Tempting of America: the Political Seduction of the Law (Free Press 1990).