Alexander Hamilton, perhaps the brightest of all the Founding Fathers, once spoke of the role of the judiciary in this way: "It may truly be said to have neither force nor will, but merely judgment." In other words, judges do not determine the law, nor enforce it. They merely gauge whether actions brought to them in various cases fall within the parameters of legality established by the political branches, and then rule accordingly with no regard for the persons involved.
This responsibility is precisely why the Founders isolated judges from the political winds, giving them life tenures. Judges should not be forced to consider popular opinion or cultural fads in the course of determining what the law says. Indeed, it may be necessary for the courts to defy those very trends in order to uphold the law as written by the people through the elected branches of government. If the people wish to change their law, they do so through the ballot box, not the courtroom.
To illustrate what Hamilton meant, it is helpful to consider the role of an umpire whose responsibility is to call balls and strikes based on a predetermined strike zone. The umpire does not change the strike zone throughout the course of the game. Nor does he consider the socioeconomic, athletic, or racial background of the individual batter. He doesn't determine for himself whether it is "fair" that one team's pitcher seems to be more skilled than the other, and then seek to "even the playing field." He is a neutral party with neither force nor will, merely judgment.
It is tough to imagine someone with a more contradictory philosophy to our Founders' vision of the judiciary than the man who currently stands poised to make his first appointment to the Supreme Court. When liberal justice David Souter announced his retirement, Obama pledged to appoint as his replacement a justice who combines "empathy and understanding." While this fits perfectly with his campaign pledge of seeking judges who are "sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless," it is also an indication of contempt for the proper role of the judiciary and an affront to men like Hamilton who helped frame it.
Though a self-proclaimed "constitutional scholar," Obama's statements depict a stunning betrayal of constitutional jurisprudence. Sympathy for outsiders, the powerless and vulnerable are noble qualities to desire in legislators - those making the law. That Obama demands them of potential judges, however, shows his allegiance to the anti-constitutional practice of judicial activism.
Consider what happened in Iowa just a few weeks ago. In 1998, the people of Iowa overwhelmingly passed through their elected branches of government a law stipulating that marriage was an institution between one man and one woman only. But seven black robed lawyers just issued a decree binding on the entire state that marriage would be opened up to alternative definitions.
In their 69 page decree from Mount Olympus, the seven wizards of the Iowa Supreme Court audaciously stated the following: "[E]qual protection can only be defined by the standards of each generation." In other words, when the people of Iowa first wrote their constitution, they weren't as enlightened as they are today. Ignoring the obvious fact that this generation of Iowans already stated their definition of "equal protection" in 1998 when they said marriage is between opposite sexes, the judges threw it out and wrote their own law.
This is the exact type of judicial malfeasance that Barack Obama wishes to facilitate at the U.S. Supreme Court level. Regardless of where we stand in the social divide that separates the left and right in American politics, this abandonment of the separation of powers as defined by the U.S. Constitution should be a grave concern for all Americans.
Allowing umpires to redefine the strike zone whenever they see fit may seem like a good idea when they favor your team. But what happens when they don't? This is the problem the Founders sought to avoid, and we will too if we know what is good for us.
Our 3rd president, Thomas Jefferson, warned that such practice would make, "The Constitution.a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." Yet that seems to be exactly what our 44th president desires.
Though once political rivals, Alexander Hamilton and Thomas Jefferson would find common ground today in fiercely combating the warped and dangerous judicial philosophy of Barack Obama. Perhaps that should tell us something.
