Disclaimer: Calling America a Republic is the correct form of language to describe America’s Governmental system, it does not refer to the political party of the same name. Referring to America’s government operations as democratic, does not refer to the political party of the same name.
The US Constitution set forth three separate and equal branches of government, possessing their own powers, authority, and processes for governing America. The problem America is facing right now, the legislative especially, and the executive too frequently, have abnegated their powers to the judicial branch until it is quite common and acceptable for a Speaker of the House of Representatives to rely upon the judicial branch to ascertain intent of a piece of legislation, instead of fixing the legislation in the House of Representatives and the Senate. So, since America’s schools have refused to teach this coequal system of government, and have bastardized the US Constitution, the following is produced.
The executive branch of government is where a person finds all the bureaucrats, or government employees, who exert the government influence through their decision-making authority granted them by elected officials. This is one of the reasons why certain offices in government need both the Mayor, Governor, or President’s approval and the approval of an elected governing body, city council, State or Federal Senate. The US Constitution put in place multiple checks and balances between the three coequal branches of government to ensure that no single branch could dominate all the branches or government.
The legislative branch, which includes city councils, state Houses of Representatives and Senators, and Federal House of Representatives and Senators, write the laws the executive branch is mandated to uphold and serve. Thus, the will of the people in establishing laws through representation was established. Therefore, legislators and senators have such tremendous power as to attract the special interest groups in our representative government.
The judicial branch does nothing more, or less, than interpret the constitutionality of a problem brought before a judge. Criminal judges have a slightly different and more expansive role, but the constitutionality of an action remains the core and the boundaries of their power.
Inherent in the republican form of America’s government is the fundamental belief that there are boundaries and restrictions to action. This is called the US Constitution. Not to be confused with Federal, State, and Local rules, laws, and procedures. A city ordinance is not the US Constitution and if that city ordinance is deemed unconstitutional for the state or federal constitution’s, a judge should declare as much and return the core issues to either the executive or legislative branch for correction.
We must be clear on this issue, the judicial branch can levy fines to encourage behavioral changes, but cannot, and should not, legislate from the bench. Yet, when the legislatures refuse to enact laws that are fair, just, and timely, it has become common practice to run to a judge and get a judicial ruling. Thus, causing chaos in the citizenry, and developing a new term for legal scholars, Lawfare.
Judicial Activism is where a judge declares that the US Constitution is a “living document” that should bend to every conceivable contemporary value. Judicial activism removes the voice of the people from the legislative branches of government and interposes the opinions of a couple of judges as being more valuable than the will of the citizens.
Judicial restraint requires intestinal fortitude and limits the powers of judges to the US Constitution and state constitutions. Judicial restraint is not popular and as such is regularly castigated by the media and those showing judicial restraint have aspersions, insults, and problems set before them.
Here are several examples of judicial overreach, e.g. judicial activism, that support the problem of legislatures or executives writing bad laws or executing poor policies, and demanding the judicial branch sort out the problems. Where chaos in the citizenry ensued.
- June 2015 – Horne v. Department of Agriculture, the Court ruled that a federal program requiring raisin growers to set aside a percentage of their crops for government redistribution was an unconstitutional “taking” under the Fifth Amendment.
- An extension of judicial overreach from In United States v. Rock Royal Co-operative, Inc., 307 U.S. 533 (1939), the Court sustained an order under the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, regulating the price of milk in certain instances.
- The Agricultural Marketing Agreement Act of 1937 was a New-Deal Agricultural order that allowed the government to seize personal property from farmers, dairymen, etc. and give it away, to regulate prices across America. This is the same time where the power of the USDA began to rise and property began to change its definition as elaborated by Charles Reich in the 1960s.
- Judicial activism allowed the government to break the fifth amendment of the US Constitution, and the practice continues to this very day by bureaucrat’s hell bent on destroying personal property safeguards in the US Constitution.
- The legal precedent was set by another case of judicial activism in the Pennsylvania Coal Co. v. Mahon 260 U.S. 393 (1922), was a case in which the Supreme Court of the United States held that whether a regulatory act constitutes a taking requiring compensation depends on the extent of diminution in the value of the property. This decision started the doctrine of regulatory taking and features prominently in the legal grounds for Eminent Domain.
- June 2005 – Eminent Domain, Kelo v. City of New London by a 5-4 majority, it affirmed the city’s right to seize private land as part of an economic development plan—a redefinition of the “Takings Clause” under the Fifth Amendment. The US Constitution states clearly that, “private property [shall not] be taken for public use, without just compensation.”
- Until this decision the Eminent Domain and Taking Clause had been strictly and rigidly defined. Five judges who believe in judicial activism opened this “Pandora’s Box,” and the havoc has been nonstop ever since.
- What was in the “Pandora Box;” before Kelo, eminent domain had been limited to direct government ownership, excluding property transfers to private corporations. With Kelo, the question of whether economic gain, resulting from a “taking” for corporate interests, constituted “public use” finally came under Supreme Court scrutiny, and five judges declared that if a corporation has interests, those interests are the same as government interests.
- As proven by Eminent Domain, corporate interests change with economies and when corporate interests change, the property holder does not get their property back, and if seized under eminent domain, the government can choose what the value of the property is worth.
- Ever want to see the power of bureaucrats in action, look at the abuses that property owners have suffered through eminent domain. Ever want to see why judicial restraint is critical, look no further than the still undeveloped land in the Kelo case!
- January 2011 – Obamacare, everyone should remember all the chaos that ensued in this political tug-of-war between the legislative branch and the judicial branch, with a healthy dose of political grandstanding thrown in for good measure by the executive branch.
- A judge in Florida issued a decision in a case filed by 25 Republican Attorneys General and Governors striking down the Affordable Care Act.
- Twelve federal judges have already dismissed challenges to the constitutionality of the health reform law, and two judges – in the Eastern District of Michigan and Western District of Virginia – have upheld the law. In one other case, a federal judge in the Eastern District of Virginia issued a very narrow ruling on the constitutionality of the health reform law’s “individual responsibility” provision and upheld the rest of the law.
- Worse, there remain multiple issues in Obamacare yet to be decided by the courts because the legislature refuses to clarify, act, or even respond to judicial opinions.
- Continuous Issue (1973) – Roe v. Wade, 410 U.S. 113, was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction.
- A little history on this subject, 1820s and 1830s abortions were common through the fourth month of pregnancy and herbs, pills, and other home remedies were prevalent for use. Then, the physicians of America and the government stepped in to prevent poisoning and assert control over home remedies, midwives, and other medical opinion providers of the time.
- New York was the first state to legalize, or codify into law abortion, as a public health measure to improve the lives of women. But, the abortion industry had not begun targeting black and non-white communities. The first women getting abortions mainstream were, a middle- or upper-class white married women.
- Original feminists opposed abortion practices and wanted only voluntary motherhood through the “right of women to control sex with their husbands.”
- The original laws banning abortion were enacted to humiliate women who had to discuss their bedroom affairs with the executive and judicial branch representatives.
- Judges made the decisions to outlaw abortion, through judicial activism because it was taking the legislative branch too long to enact laws the special interest groups, the American Medical Association (AMA), wanted.
- Judges then made the decision to make abortion on demand legal, through judicial activism, because again it was taking too long for the legislative branch to act and enact the appropriate laws.
- Thus, judicial activism and abortion have a long and sordid history of causing chaos in America since at least the 1840s. Hence, when a person discusses Roe v. Wade they are only discussing the abortion on demand industry, and not the whole problem of judicial activism on this issue.
- June 2015 – Homosexual Marriage. The executive branch of government, almost as soon as America was codified into law, began regulating marriage between a man and a woman, based upon Judaeo-Christian understandings of marriage. By regulating marriage, the government gained a revenue source, a control mechanism for the behavior of the population, and set legal precedents for what is and is not considered a marriage by the state. Each state adopted their own legal precedents, guidelines, rules, laws, and so forth leading eventually to 50-different opinions on marriage.
- Important to note, nothing in the US Constitution requires the definition of marriage for all 50 states, nothing in the US Constitution prohibits the state executive branch to regulate marriage. The executive branch acted to regulate marriage licensing as a control measure on individual morality, e.g. the number of wives of husbands a person may have, marriage to animals being forbidden, etc.
- Five judicial activists decided that all 50-states need to adopt homosexual marriage and exerted their opinion accordingly through the courts. This decision has trumped the executive and legislative branches of government, stolen the individual citizen’s voice, and created untold havoc and uncountable expenses for every person in America.
- A marriage license and a driver’s license are both executive controls on the population through government setting rules, regulations, and policies. The definition of marriage is a state right’s issue, as the individual states claimed they have the right to regulate marriage when they individually began issuing licenses to marry or drive.
- For or against homosexual marriage is a state right’s issue, not a Supreme Court, or Federal Government Issue. Hence, the judicial activism that drove this decision is the problem, not necessarily how the judges expressed their opinions. This decision is a clear-cut example of needing to return a judicial decision to the states to decide through legislative action.
Judicial activism has been carefully cultivated into America, so that every time there is a problem, the solution is to grab a judge and demand a decision. However, as shown herein, the courts are a gamble, and the worst that occurs is more societal chaos because a judge has overstepped their authority and made unequal the three branches of republican government. Worse, that judge has rendered the democratic processes of the people’s rights to self-rule invalid, null, and void.
For example, Kelo should have been referred to the legislative and executive branches for a decision, as the “Taking Clause” was constitutional, but rigidly controlled. But, because the judicial stepped in to “solve the problem,” through adjudication, chaos has ensued, which has forced, at a minimum, 40 different interpretations of the “Taking Clause.” Which opens a minimum of 80-different potential decisions if the courts decide to take up the Eminent Domain issue again. Talk about chaos!
The executive branch and the legislative branch must be held accountable for abnegating their duties. This accountability occurs at the ballot box where the lazy and recalcitrant lawmaker is returned to being a private citizen. Then, launching a judicially correct investigation into why that person abnegated their duties; especially, if personal enrichment occurred. Judges are supposed to be held accountable through the actions of the legislative and executive branch taking firm action, not creating new laws. The judicial branch oversees executive and legislative investigations only to ensure the US Constitution is properly followed. Proper checks and balances!
However, there is a caveat to the US Constitution provided by the second president of the United States, John Adams. “Our Constitution, [which includes all the separate state constitutions,] [were] made only for a moral and religious people. It is wholly inadequate to the government of any other [type of person].” Why has the executive and legislative branches abdicated their duties to the judicial; they are not inherently moral or religious. Why has judicial activism exploded; the people in office are not moral or religious.
Thus, the solution for America is to begin hiring through the election process morally upright and religious people. Every vote, in every election, matters. Those on the political left understand this policy and use it as a weapon to create enmity and negate the power of the people to self-government and republican rule through democratic processes. Make the time, get knowledgeable about candidates and issues, and then vote!
© Copyright 2020 – M. Dave Salisbury
The author holds no claims for the art used herein, the pictures were obtained in the public domain, and the intellectual property belongs to those who created the pictures.
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