From: "John Hurst", [EMAIL PROTECTED]
It really is most difficult to see any connection between this type of
argument and the real world. Are you really saying that the will of the
people today cannot overturn an agreement made three hundred years ago by
two groups of aritocrats who were by no means representitive on any form
of
democracy in the way we now understand it?
Keith,
The following article on Judicial activism my be prophetic for the
UK.
Regards, John Hurst.
===
Getting Inside the Cult.
by Ryan McMaken
It finally seems that the American judicial system may have finally gotten
too smart for its own good. Prior to the November ruling by the Florida
Supreme Court, some legal experts were predicting that the Florida high
court would be unwilling to overturn the Secretary of State's certification
of the Bush win. Presumably, they argued, the Florida Supreme court would be
unwilling to sacrifice its prestige by engaging in such a blatantly partisan
action. The predictions were wrong, and the Florida Supremes did their best
to hand Gore the election. When the case was appealed to the U.S. Supreme
court, there were again predictions that the U.S. Supremes would not want to
jump into the fray of the partisan fight. Well, the justices couldn't help
themselves and they too jumped into the business. After the U.S. Supremes
reversed the Florida decision, the Florida high court made another attempt
to hand Gore the election, and the U.S. Supreme court slapped them down
again. In both of the latter two decisions, both the U.S. Supreme court and
the Florida Supreme Court have given split decisions, and the U.S. justices
have even taken to publicly criticizing each other before a decision on the
case is even made. All the judicial mythology of unanimity and political
independence of the courts is beginning to look pretty foolish.
Ever since the ink was barely dry on the Constitution, the American courts
have been trying to establish and solidify their independence while
attempting to convince all that they are a breed apart from ordinary people
who let themselves be swayed by vulgar politics. Evidently, they have been
pretty successful at their task. The vast majority of Americans hold the
judicial system in high esteem while elected legislative bodies are held to
be some of the most untrustworthy groups in America. Few dare criticize the
decisions of the U.S. Supreme Court, and Supreme Court decisions are often
invoked as the final word on various political matters. This is due largely
to Chief Justice John Marshall's assertion in 1803 that the Supreme Court
has the right of judicial review in federal law. No such thing was written
into the Constitution, but Marshall managed to turn it into a massive power
grab for the judicial system. Marshall wanted to turn the court into a body
of sages aloof from common politics. Detached from local interests and party
matters, the judiciary was supposed to act in the best interest of
preserving the law and the Constitution. Free from the influence of
politics, the court would be able to hand down decisions based strictly on
the merits and the intent of the law. Or so they claim.
Although it has been able to promote its own power fairly well, the Supreme
Court has not always been successful in enforcing its fiats. When Marshall
declared that President Andrew Jackson's Indian policy was unconstitutional,
Jackson ignored the decision and said, "Mr. Marshall has made his decision,
now let him enforce it." When Chief Justice Roger Taney criticized Lincoln's
habit of suspending habeas corpus, Lincoln just ignored him. The courts know
that their power rests exclusively on their prestige. They do not represent
local or state interests and they do not command any troops or any army of
bureaucrats. They are powerless in executing any of their laws. To counter
this, they work very hard on puffing up their reputations as unanimous,
impartial, and independent bastions as the rule of law in the hope that
someone will actually listen to them.
As a result, a cult of judicial supremacy has grown up within the legal
profession. The judges and lawyers within the cult do their best to always
make each other look good and to generally avoid controversy. They have odd
habits like no other branch of government. They wear strange puffy black
robes, and everyone has to stand up every time they enter the room. No one
feels the need to stand up when the congressman from California's 27th
district enters the room, yet when Podunk County judge Joe Schmoe enters the
courtroom, everyone's suddenly on their feet. Unlike elected politicians who
openly criticize each other and engage in open debate, the modern Supreme
Court and the state equivalents are huddled in a back room poring over some
legal texts trying to figure out how they can best subvert the law without
losing any of their precious prestige and legitimacy. Like any
