Posted by
flagwaver on Saturday, August 07, 2010 11:15:50 PM
November is fast approaching and we conservatives are all atwitter about the upcoming elections. There is a very good opportunity to take back both the House and the Senate, and possibly unseat such liberal stalwarts as Harry Reid and Barbara Boxer in states where they have held their positions in a near mortal lock. And that is worth being excited about.
But as much as that day may excite us, I have this sinking feeling that what we do may not matter. The problem is that we the people have lost our power to the "least dangerous branch". Look no further than two recent judicial decisions to prove my point: the decision against Arizona's SB1070 and the recent overturning of the California constitutional amendment that prohibited "gay marriage".
Those two rulings show just how out of control the federal courts have become, and how much authority we have seen ceded to them. In both cases we see liberal judges step into state political matters and overturn the will of the voters of those states. In Arizona, a judge in the federal courts decided that Arizona was out of line in passing a law that made federal immigration law into state immigration policy, and in California a judge decided that the will of the people there to ban "gay marriage" was unconstitutional. All by himself he found in the Constitution a federal right to gay marriage, that if upheld by the federal courts, would make that the law for the western part of the US.
The problem with this scenario is that the voices of the people are being lost, and in at least one case (California) the court really had no right to intervene in the case at all. In Arizona, the federal court was allowed to hear the case because the federal government was a party to the case as it was the DOJ that brought suit against Arizona. But in California, I can see no reason why the federal court had any constitutionally sound reason to intervene in the case. According to the Constitution in Article III, Section 2 the federal courts have jurisdiction "-to all cases affecting ambassadors, other public ministers and
consuls;--to all cases of admiralty and maritime jurisdiction;--to
controversies to which the United States shall be a party;--to
controversies between two or more states;--
between a state and citizens of another state;--between
citizens of different states;--between citizens of the same state
claiming lands under grants of different states, and between a state, or
the citizens thereof, and foreign states, citizens or subjects." Unless I am mistaken, Prop 8 is a controversy within the state of California over an amendment to their Constitution passed by the voters of the state, and that is not one of the criteria issued by the US Constitution to determine the cases heard by the federal courts.
And therein lies the rub; we have allowed the federal court system for so long to act as a de facto legislative body, that we have effectively stripped ourselves of any readily applicable political power. As the courts have taken over more of the responsibility of "making new law" and enacting their policy preferences, we have lost the power of the ballot. In short, with an ascendant court system our republican system begins to wither and die. Our votes really mean little when we have come the point where we don't look at our representatives to fix our problems, but hope that a judge or panel of judges makes decisions that show fidelity to the Constitution. The irony of that is that our acceptance of this perversion of the system exists because we have abandoned the very limits and constraints contained within the Constitution itself.
So until we have the courage to challenge our representatives in Washington, DC to force the courts back into their rightful place in the system set forth in the Constitution, our votes really don't matter very much. I am not saying not to vote, because that is still important. But we need to put the pressure on our congressional reps to rein in the courts and help us reclaim our rightful place as the ultimate authority in our republic.