Maintaining Some Perspective

The Founding Fathers had a great organizational concept when they cranked up this Constitution of ours. They drew from the theories of Montesquieu who thought that rather than a fusion of powers in a government ala British Parliament, we should separate the powers and organize with some checks and balances. We all remember those key phrases from our sixth grade civics class: “separation of powers” and “checks and balances.” It would be good to review the concept occasionally and might even be beneficial if our current crop of elected officials and pontificating media talking heads did so as well.

The idea was that the legislature would make the laws, the executive would administer and enforce the laws of the legislature, and the judiciary would insure that the laws were interpreted properly while at the same time making sure that the rights of the minorities would not be trampled by a tyranny of the majority. There would be a little bit of overlap in each branches areas of responsibility to insure that no branch became predominant.

But, how many times in the last few years have we heard about “legislating from the bench”? We might not be sure exactly what that phrase means, but we know instinctively that it is a bad thing. It must mean that the poor legislators are unable to conduct judicial activities while the activist judges are not only judging but making laws as well. Not exactly.

What it usually means is that an ideologue is offended by a ruling of the courts that disagrees with a particular position. That’s why the coming confirmation hearings for John Roberts are going to be such a carnival. We’ve already seen Ted Kennedy, Chuck Schumer and Harry Reid posturing with pious demands for everything that Roberts has ever said, written or even harbored in the back of his mind. They want to know his “views” so that they can foresee how he might rule in the future on sensitive issues. Chappaquiddick Ted has already suggested that Roberts ruling that a California frog was not engaged in interstate commerce means that all of us old folks are going to lose our Social Security, Medicare and our rights to an abortion.

Thomas Sowell, one of my favorite editorialists, has a great column pointing out that judges are obligated to rule on the merits of a case in accordance with the law. Searching for Relevance Judges might harbor contrary personal opinions, but the rulings must be justified by the written law. They might be personally in favor of prayer in schools, but they must rule based on what the First Amendment says about religion, government and free speech. What a concept! In other words, lets give a bit of credit to experienced lawyers selected to become judges that they might be able to function with a bit of objectivity.

Sowell also does a wonderful job of pointing out that in the boardrooms, executive offices and round-table discussions of leaders with their staffs, the supporting players must be able to offer unconstrained opinions and advice free from apprehension that years later their thoughts might be used to vilify and publicly pillory those individuals when nominated for a position of responsibility in our government. Advice rendered under that sort of apprehension might be very timid indeed.