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Miscellaneous meanderings and philosophical ramblings. The title from a spiral notebook I used to jot down my thoughts on religion and other matters some years ago. I like to write, think and express my views on various issues. Robust discussion is welcome.

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"Lan astaslem."
I will not submit. I will not surrender.
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Saturday, July 09, 2005

"It's good to be the king"

"It's good to be the king", I wonder how many people know which movie that line is from. But, rather than focus on such a film, I am going to discuss the serious issues of power and law.

From Henry Bracton, father of English common law, mid-thirteenth century:

"Let the king render back to the Law what the Law give to him, namely, dominion and power; for there is no king where will, and not Law, wields dominion."

Bracton's wise words state a principle we inherited from the English experience of law and politics. Unfortunately, we are moving very much away from this and headlong into a type of despotism. A small change to Bracton's quote will illustrate this.

"Let the judge render back to the Law what the Law give to him, namely, dominion and power; for there is no judge where will, and not Law, wields dominion."

With a Supreme Court vacancy and more to come, during the Bush administration, there will be much debate about the role of the courts in shaping our culture. For some, activist judges have brought important freedoms to the country. The problem with that is it is merely the ends justifies the means. Such a person will have no defense should the judges start creating law that they suddenly find themselves disagreeing with. For their justification of activism is grounded in nothing other than subjectivism. They cannot appeal to the Constitution because they have already advocated that it be ignored.

But the Constitution is where the judge's powers originate. If it is ignored on all other issues then Bracton's quote clearly applies in it's modified form. This is not the only problem though.

When we become ruled by men, rather than by law, we have no certain knowledge of what laws we will be breaking. Increasingly often it will become something that must be decided by whoever sits in the courts. But if they are not constrained by law or the Constitution, then we cannot be secure in the knowledge of what they will decide this time or in the future. Sandra Day O'Connor is a good example of a lack of clear and consistent legal principle. Then there is Kelo, the most recent and startling example of a ruling based entirely on the personal views of judges, with no regard for the text of the constitution.

Those beholden to judicial activism will say we can fix such errors by legislation. That may work now, but it is very difficult to fix errors due to judicial activism when judges claim supremacy to legislatures and such judges are still being placed in power. Furthermore, society can fix laws that "strict constructionalist" judges have decided for or against, as well. Laws are written and the constitution is amended as need be. Both ways result in society changing but by working through legislatures rather than activist judges we have the support of the Constitution, as well as more effectively reach compromises that satisfy a broader range of the population. We also have the protection of law, rather than merely rely on the vain hope that there are still men or women in those robes who will be merciful to us as they gaze down upon us from the lofty heights they have created for themselves.

There really is no Constitutional support for activist judges. One may like the current results and think, "It's good to be the king". However, such thinking doesn't rise above the level of an entertaining comedy and is beneath serious political though. If Dred Scott doesn't prove the point, then Kelo should make it clear that such a benevolent despotism can very easily turn against society.

Today, property rights have become much less secure. Who knows what will come tomorrow, except activist judges, as they roll the dice in their heads rather than subject themselves to the Constitution from which their power is actually derived.
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