Eliminate a Judge Making Law rather than Interpreting Law
Examples of a judge making law
A judge orders tax increases in some communitiesclassic taxation without representation
A judge orders property to be sold under the government’s power of eminent domain simply so the new private property owners may build projects that yield more tax revenue to the government.
The decision in Massachusetts to allow gay marriage imposes the decision of three judges on the entire nation. It may require a constitutional amendment to override it though this is under the purview of our legislature of representatives.
The constitution on the role of a judge regarding the law.
The Constitution grants Congress the power to limit the jurisdiction of the federal courts. Article III, Section 2, explicitly gives Congress the power to limit the appellate jurisdiction of the Supreme Court (“the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such regulations as the Congress shall make”). The power of Congress to limit the jurisdiction of the lower federal courts is implied. Article III, Section 1, grants Congress the power to create the “inferior Courts,” which has to include the power to establish the scope and limits of their jurisdiction. (The Constitution spells out Congress’s ability to limit the jurisdiction of the Supreme Court because the Constitution, rather than Congress, establishes that court.)
“It is the people and not the judges who are entitled to say what the Constitution means, for the Constitution is theirs, it belongs to them and not to their servants in office”
Our political culture contemplates two methods of correcting errant courts: amending the Constitution to override them, and appointing successor judges who will rule differently.
National Review 7-29-2002 p.32
Judges subvert our democracy by making rather than interpreting laws.
. . . the debate over the selection of judges is really keyed, I believe, to what role you see the judiciary playing. And it is important to understand that the left and the right in American politics see the judicial role very differently.
First, the left sees judges as the action arm, or at least an impregnable bastion of defense in support of progressive notions. The action arm can be seen in areas such as abortion, religion in the public square, criminal procedure, the right to bear arms, and the death penalty. The impregnable defense phase can be seen when the state supreme courts, as is almost routinely the case, declare unconstitutional any kind of tort reform passed in the states. It can be seen at the federal level when federal term limits are declared off limits. It can be seen when any type of reform to class action lawsuits is attempted.
Second, on the right you have individuals who see judges as aloof from politics, who believe that a judge’s role is to determine the original understanding of the instrument before it, be that a contract, a statute or a constitution.
Third, it is important to understand that in the United States the legal culture is thoroughly and completely controlled by the left. This is true in the law schools. It is true in the American Bar Association. The legal culture, accordingly, is a culture that is hostile to the notions of judicial traditionalists. Thus, and this is important to understand when you’re thinking about judicial selection, blind draws into the country’s legal pool will produce by and large adherents of the left’s view of what a judge should be.
Fifth, this split is new between the right and the left. I believe that for 150 or perhaps even 160 years in this country Republicans and Democrats had a similar view as to what judges did and didn’t do. But that has changed. And I think it is important that we understand this.
Impeach a judge for making the law rather than interpreting it
Occasionally, someone will suggest that a judge who regularly exceeds their constitutional mandates should be impeached. House Majority Leader Tom Delay said this a few years ago, and was treated as a dangerous madman as a result. He shouldn’t have been. In Federalist Number 81, Alexander Hamilton prescribes exactly that remedy for judicial usurpation.
National Review 7-29-2002 p.32
Eliminate all inferior courts and start over
Some have suggestednot realisticallythat since Congress has the power to establish “inferior courts” it could simply exercise its power by eliminating our existing courts and start over!