The Rule of Law
Last week, I gave the keynote address at the Sutherland Institute’s symposium on the rule of law.
This week, I will post a few entries on the rule of law. Here are some background thoughts for those entries.
The Constitution intends to drive our divisive, complex and plain-ugly issues into the legislative arena for resolution. Other countries lack such a process and settle their differences in the streets with mobs and violence.
What happens in America, when the rule of law is sidestepped and complex issues are not addressed in the proper arena?
This week, I’ll present three problem areas, and I’ll tell you what I would do to uphold the rule of law in the United States Senate. In all three areas, your rights currently are being stolen and destroyed. Those areas are (1) judicial activism (judges completely removing issues from democratic process and the reach of voters), (2) federal activism (Congress removing issues from the real reach of voters by doing the business of local government), and (3) cowardice (elected officials hiding from complex issues).
Around election time, we hear allegations of disenfranchisement – usually nonsense allegations that don’t hinder anyone who truly wants to vote. The three areas I mention above, though, do take citizens out of the process. Citizens are prevented from meaningfully participating in their government by violations of the rule of law.
For example, on point one (judicial activism), Courts have largely stolen your right to weigh in on abortion policy. Why? Because the Justices figure we’re not as smart as the 9 of them.
On point two (federal activism), Congress has decided that it, not your local leaders, will decide education policy in Utah. Why? Because members of Congress figure they know better than Utahns what Utah schools need.
On point three (cowardice), think of immigration. Why are we stuck with flawed and dangerous immigration policy? Because Congress is too scared to deal with it.
This week, I will post a few entries on the rule of law. Here are some background thoughts for those entries.
The Constitution intends to drive our divisive, complex and plain-ugly issues into the legislative arena for resolution. Other countries lack such a process and settle their differences in the streets with mobs and violence.
What happens in America, when the rule of law is sidestepped and complex issues are not addressed in the proper arena?
This week, I’ll present three problem areas, and I’ll tell you what I would do to uphold the rule of law in the United States Senate. In all three areas, your rights currently are being stolen and destroyed. Those areas are (1) judicial activism (judges completely removing issues from democratic process and the reach of voters), (2) federal activism (Congress removing issues from the real reach of voters by doing the business of local government), and (3) cowardice (elected officials hiding from complex issues).
Around election time, we hear allegations of disenfranchisement – usually nonsense allegations that don’t hinder anyone who truly wants to vote. The three areas I mention above, though, do take citizens out of the process. Citizens are prevented from meaningfully participating in their government by violations of the rule of law.
For example, on point one (judicial activism), Courts have largely stolen your right to weigh in on abortion policy. Why? Because the Justices figure we’re not as smart as the 9 of them.
On point two (federal activism), Congress has decided that it, not your local leaders, will decide education policy in Utah. Why? Because members of Congress figure they know better than Utahns what Utah schools need.
On point three (cowardice), think of immigration. Why are we stuck with flawed and dangerous immigration policy? Because Congress is too scared to deal with it.
posted by steve u. at 8/15/2005
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4 Comments:
Orrin II,
I'll trust that when you talk about "activist" judges who are activist in that they overturn ratified legislation, you'll mention that the two Supreme Court Justices that have voted for overturning established laws the most are Scalia and Thomas. Do this and you'll have some credibility and you'll sound alot less like Orrin I.
Steve-
Are you suggesting that Hatch doesn't stand up for the rule of law? If so, how?
Shawn, I can't speak for Steve, but the complaint about activist judges as far as I'm concerned isn't really about judges who overturn legislation - which is after all only one of a confusing handfull of definitions of judicial activism. The complaint is about judges who substitute their policy preferences in overturning perfectly constitutional legislation or who legislate from the bench by inventing legal requirements in order that their policy preferences be accomplished.
We want judges to overtun legislation when it is unconstitutional. We do not want judges to confuse constitutional interpretation with imposing their personal views of right and wrong.
Charley, nice job on clarifying the issue of judicial activism.
Steve, I agree with you on point 2, but how do you respond to comments by friends of mine that if the state accepts federal money it must be willing to accept the strings attached to that money?
One idea is that the federal government should stop taking the money and let the states manage it all themselves, but in reality Utah receives more federal funds than it pays, so under that system Utah would end up with a net loss of funds. Some argue that since most of Utah's real estate is federal property the federal government is obligated to kick in more funds.
Since we do receive federal funds, the argument goes that the taxpayers from outside of Utah that pay the excess funds should have some say in how it is spent. What are your thoughts?
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