By Donald Devine
Published: 05-30-08
It is an incredible era when the very worst lawlessness occurs at the very highest levels of the judicial system. The judges have ample company at every level of government below them today but it is surely worse when an unelected body made independent of public pressure to assure neutrality instead decides to use that autonomy to arbitrarily subvert the rule of law.
It has taken a generation of political activity to limit the excesses of the 1960s Supreme Court--finally to appoint a relatively non-activist majority at least to minimize the worst abuses.
Obviously these thoughts come to mind in the face of the recent California Supreme Court decision overruling both a 1977 statute and a 2000 public referendum restricting marriage to a union between a man and a woman which was especially shocking since California had one of the most liberal domestic partnership laws in the nation granting homosexual couples “virtually all of the legal benefits and protections of marriage” as The Washington Post put it.
It is the extremism that strikes one. For a 4 to 3 court majority to completely disregard the legislature and a 61 percent public majority is one measure. But the judicial fanaticism that does not allow any compromise on such a major matter stings even more.
Even Barack Obama and Hillary Clinton support marriage for a man and a woman and civil unions for homosexuals as an explicit means for a compromise acceptable to both sides. Perhaps this could avoid the years of contention that followed a similar case of judicial activism over abortion that has not healed to this day. But the California court would have nothing of it. It was its way headless of any consequences. It is not for nothing that even before this decision the media had tagged Chief Justice Ronald George as “King George.”
The California majority specifically justified its intervention as necessary to override the “deeply rooted prejudices” of citizens and legislators. Judges of course have no prejudices.
They did limit the ruling to say that no religious body would be forced to change its policies nor would any official holding different views be forced to officiate at single-sex marriages. Yet if the reason for refusing to treat homosexual unions as marriage is deep prejudice these exceptions could not survive the court’s own “compelling interest test.” Some future court would logically be required to end these limitations as occurred with abortion and undoubtedly was understood by the California justices when they made this bow to public opinion. The court minority was not fooled:
A bare majority of this court not satisfied with the pace of democratic change now abruptly forestalls that progress and substitutes by judicial fiat its own social policy views for those expressed by the people themselves.
Not surprisingly the decision provoked a political reaction. One million signatures were delivered to state authorities to place a constitutional amendment on the November ballot to overrule the court majority. But amendment opponents such as California Governor Arnold Schwarzenegger now say the judges have spoken and all must obey the law. This is pure nonsense. Law is not just what judges say it is. Clearly constitutional amendments override judges and their decisions are not even supposed to be immune from public debate. As federal Circuit Judge and future president and Chief Justice William Howard Taft wrote in 1895:
The opportunity freely and publicly to criticize judicial action is of vastly more importance to the body politic than the immunity of courts and judges from unjust aspersions and attack. Nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be submitted to the intelligent scrutiny and candid criticism of their fellow men. In the case of judges having a life tenure indeed their very independence makes the right freely to comment on their decisions of greater importance because it is the only practicable and available instrument in the hands of a free people to keep such judges alive to the reasonable demands of those they serve.
The matter goes even deeper. The first principle of the English jurisprudence from which American law evolved is that everyone is subject to the law king commons and courts. The philosopher who most influenced both John Locke defined real law as “established settled known law received and allowed by common consent to be the standard of right and wrong and the common measure to decide all controversies between them.” It is set by a representative legislature that neither must or can transfer the power of making laws to anybody else. The whole point of a rule of law is that it is based on the settled common beliefs of the people and their legislature not to be invented by judges—or anyone else--as fashion dictates.
This view of law as based on common beliefs was uncontested in America until the early 20th Century when it was challenged by the legal-positivist progressives under the leadership of Oliver Wendell Holmes Jr. the most influential jurist of “law without values” utilitarianism Malthusian economics state-regulated eugenics and compulsory sterilization and judicial supremacy. Substituting expert pragmatism for common consent progressivism is forced to create positive law on every subject based on the specific facts of every case unguided by tradition or common morality.
As Nobel laureate F.A. Hayek following Locke demonstrated this violates the rule of law because law must have general rules that all people in general circumstances can understand beforehand. Progressivism even at its best produces too many rules for people to follow. There is a law on everything so that no one can know the tax code business regulations or even the criminal law so no one can understand and follow them. At its worst progressivism produces so many conflicting rules on so many specifics that the laws produce nonsense.
Progressivism so dominates law today that even to understand the older traditional view it is necessary to return to an earlier America when it worked. In the early 19 th Century Alexis de Tocqueville was dispatched by the French government to investigate the new nation’s prison and legal system. After exhaustive investigation he was amazed to discover there was none. In fact there was no evidence of the national government at all outside the capitol city. Still the U.S. functioned indeed better than Europe he concluded.
The law was understood in every citizen’s heart and did not need copious statutes. There were state judicial systems but they were decentralized to counties which in turn were dependent on towns juries and voluntary communities that mostly were limited to the control of violence. Even then local notables were mostly called upon to settle disputes brought by their neighbors outside of court. Only the most serious cases that could not be settled locally were brought even to county authorities.
This idea of law was based on an even older view. The Apostle Paul had said:
If any of you has a dispute with another dare he take it before the ungodly for judgment instead of before the saints? Do you not know that the saints will judge the world? And if you are to judge the world are you not competent to judge trivial cases? Do you not know that we will judge angels? How much more the things of this life! Therefore if you have disputes about such matters appoint as judges even men of little account in the church. I say this to shame you.
Is it possible that there is nobody among you wise enough to judge a dispute between believers? But instead one brother goes to law against another—and this in front of unbelievers! The very fact that you have lawsuits among you means you have been completely defeated already.
Disputes should be settled by the community not the state and goodwill should predominate over legalisms. The letter of the law stifles but the spirit frees was the center of the understanding. Law is only a last resort and the fewer the better. God needed only ten. Nothing could be more foreign in America today. Everything is settled by going to the legal authorities—and it has produced nonsense as a few recent examples at hand show. A mother is arrested for child abuse for moderately disciplining her own child. A teacher is charged for not reporting “sex abuse” to the sheriff concerning a high school student carrying a nude picture of his girlfriend.
A day care worker is cited for not reporting a teacher who had lightly shaken a child. A college issues a formal complaint to a student who was reading a book about the Ku Klux Klan for committing “racial harassment” because other students could be offended by the cover even though the book was critical of the KKK. Millions of passengers have air flights cancelled to assuage a Congressional demand for more technical inspections that had nothing to do with safety. Three insurance company CEOs are forced by prosecutors who did not have sufficient evidence to bring formal charges to resign so the authorities could save face for earlier claiming these less than perfect business decisions were crimes.
This is a legal system that has lost any sense of rationality. Fortunately most things are still settled privately in the U.S. by families neighbors communities churches associations schools businesses and the rest. But the non-governmental entities must respond effectively before it is too late. The progressive obsession with rules and laws is slowly wearing down common understandings based on traditional morality and good sense. How can parents teach these if they are not allowed to discipline?
Can child care centers be loving to children if they are required to report to authorities every touch? How long can schools effectively train students if they must report every rude picture to the sheriff? How can a businessman take risks to increase efficiency if mistakes have criminal consequences?
The inevitable consequence of positivist law is that no one will do anything. Everyone will act like a bureaucrat which is the unintended result of progressive nanny-statism. It is more than time to reverse course and return “established settled known law” to the center of social life. In the spirit of St. Paul perhaps it should begin with religion taking back the institution of marriage from the state as was the case before modern times declaring independence from the whims of the modern King Georges trying to define by dictate what was set by religion from the beginning.
Donald Devine the editor of Conservative Battleline Online was the director of the U.S. Office of Personnel Management from 1981 to 1985 and is the director of the Federalist Leadership Center at Bellevue University.
