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TechnoratiThe founders, thus, envisioned the judiciary as the "weakest of the three departments of power", thereby posing the weakest threat to our liberties. Much has changed since our Constitution was adopted, however, and the judiciary, having arrogated unto itself powers rightly belonging to the executive and legislative branches, currently represents the biggest threat among the branches to our liberties. Hamilton and Madison acknowledged this threat by stating, "[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers."
When judges make law from the bench, they short circuit the democratic process. Even if the end result appears to be a desirable outcome, it comes at the expense of representative government. In a democracy, the process is no less important than the product. Robert Bork in his book, The Tempting of America, observed, "The democratic integrity of law…depends entirely upon the degree to which its processes are legitimate…. Those who would politicize the law offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy."
Sadly, executives and legislators have been complicit in this accretion of power in the judiciary. In the politically charged environment in which we live, elected officials have, all too often, been too willing to let the judicial branch of government make the final call on tough decisions involving political hot-potatoes—abortion, homosexual rights, prayer in schools, etc. They think that if the judicial branch makes the calls, the political branches will be immunized from the adverse political fall-out. Therefore, rather than acting to check and balance a run-away judiciary, the political branches all too often defer to imperious court rulings that misrepresent the requirements of state and federal constitutions.
The executive and legislative branches must act to end the hegemony that the judicial branch has acquired through distorting the requirements of the Constitution. Judges, no less than legislators and executives, are capable of running afoul of the Constitution. When they do, the other branches should act decisively to check their excesses. If they don't the people should replace them with those who will.
Nothing less than the future of our representative republic hangs in the balance.
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Ken Connor is Chairman of the Center for a Just Society in Washington, DC and a nationally recognized trial lawyer who represented Governor Jeb Bush in the Terri Schiavo case. Connor was formally President of the Family Research Council, Chairman of the Board of CareNet, and Vice Chairman of Americans United for Life. For more articles and resources from Mr. Connor and the Center for a Just Society, go to www.ajustsociety.org. Your feedback is welcome; please email info@ajustsociety.org
