For Droopy: Skousen and the Tyranny of Judicial Review

[_Darth J]

In Section 101 of the Doctrine and Covenants, the Prophet Joseph Smith received a revelation in which the Lord indicated that He had established the Constitution of the United States "for the rights and protection of all flesh."

Unfortunately, as time has gone by since the Lord established and maintained the divinely-inspired Constitution, the judicial branch of government has made an ever-increasing power grab by purporting to interpret whether laws passed by Congress or state legislatures are permissible under the federal constitution. The name of this sophistry invented by these tyrants in black robes is "judicial review."

Cleon W. Skousen, a conservative LDS intellectual who understood the Constitution better than all the judges and lawyers in America combined, explained the insidious evil that inevitably arises when judges turn our country into a leftist dictatorship by presuming to decide whether laws passed by our representatives elected through popular vote violate the structure of government and/or the rights secured by the Constitution. As Skousen put it:

The objection grows out of the fact that the Court became impatient with the normal procedure of gradually working out social and economic problems by the people themselves acting through their legislatures and took upon itself the task of using its power and prestige to force upon the people the will of the majority of the court whether society was in agreement or not. Already it can be demonstrated that many of these “social justice” or “individual rights” cases have done more harm than good and actually delayed the realization of the goals the Court claimed to be seeking........

Certainly it was never intended by the founders that this branch of the government should elevate itself to a point where “judicial review” became “judicial tyranny.” For the sake of the Court itself there needs to be some sort of remedy available when that high tribunal gets so completely out of touch with the people and their desires that it tries to violate the Constitution with impunity and enforce its arbitrary will on the whole nation.

http://www.latterdayconservative.com/ar ... n-and-now/

A recent example of such judicial tyranny through the use of so-called "judicial review" is the case of Florida v. Dept. of Human Sevices.

This case involved the Patient Protection and Affordable Care Act, which was passed by our country's duly elected congressional representatives in 2010. As the Founders envisioned in the republican system of government that the Constitution sets up, both houses of Congress---whose members are elected by popular vote in their respective states---passed this bill. The President, who is elected by the will of the American people, then signed this bill that had been approved by both the House of Representatives and the Senate into law, pursuant to his duties under Article II of the Constitution.

Not content to let such matters be decided by elected representatives, whose job under the constitutional structure is specifically to make legislation, certain plaintiffs decided to do an end-run around the marketplace of ideas and the vote of representatives who are directly accountable to their constituents. Taking advantage of this extra-constitutional sophistry of so-called "judicial review," these plaintiffs decided to have their will imposed on what the political branches of government had already decided was best for the people they represent by bringing a lawsuit before unaccountable, unelected judges. In the plaintiffs' way of thinking, these tyrants in black robes should be telling us what is good for us, regardless of what our duly-elected representatives have already voted on in a democratic process.

Sure enough, in yet another power grab by the federal judiciary, the Eleventh Circuit Court of Appeals held that certain provisions of the Patient Protection and Affordable Care Act were unconstitutional. This kind of judicial activism was neither intended nor foreseen by the Founders. Just as Skousen described, these unelected judges with no accountability to the American people "became impatient with the normal procedure of gradually working out social and economic problems by the people themselves acting through their legislatures."

Until plaintiffs such as those in Florida v. Dept. of Human Services are stopped from bringing these lawsuits seeking to impose their will over laws that Congress and the President have enacted as the Constitution envisions, true rule of law and the principals of representative democracy on which our divinely-inspired Constitution was based cannot be realized. I look forward to Droopy joining with me in decrying this latest chapter in the sordid history of judicial activism and legislating from the bench that is speciously known as "judicial review."

[_Droopy]

Do you still have that glove O.J. dropped, Johnnie, or did you donate it to the ACLU?

[_Darth J]

Do you still have that glove O.J. dropped, Johnnie, or did you donate it to the ACLU?

Thank you, Droopy. I appreciate your acknowledging that the Founders never intended for lawsuits to be brought so that unelected judicial tyrants could override the political branches whose members are accountable to the American people.

I am very pleased to see that you agree with me that Florida v. Dept. of Human Services is nothing but another naked power grab by the judiciary and more legislating from the bench.

[_MrStakhanovite]

Oh look, it's Droopy dodging issues again.

[_Darth J]

Another example of creating law by judicial fiat, in flagrant defiance of the plain language of the Constitution, is a 2000 U.S. Supreme Court case called Troxel v. Granville.

In this case, duly-elected state representatives in Washington, after considering the marketplace of ideas on which representative democracy thrives, passed a statute permitting "any person" to petition a court for visitation rights to children. The Washington legislature, which was elected by the people of the State of Washington, determined that a judge could determine that such visitation would be permissible and enforceable even against the wishes of the child's parents, so long as visitation with the petitioner was in the child's best interests.

Just as Cleon Skousen warned, a certain parent "became impatient with the normal procedure of gradually working out social and economic problems by the people themselves acting through their legislatures." Instead of working through the political process and presenting an argument to the marketplace of ideas on the public square, this plaintiff sued to have unelected judges with no accountability override the law that had been passed through the legitimate political process.

Eventually, this case reached the U.S. Supreme Court. Totally disregarding the words found in the Constitution itself, the Supreme Court held that the Washington law allowing "any person" to potentially get visitation rights with a child even over the express objection of the parent was unconstitutional.

This is nothing but more judicial sophistry and judges imposing their personal will on the American people. There is NOWHERE in the Constitution that gives a right to have children, or that gives a parent the right to have any say in raising the child, or even having custody of the child. Not only that, the 10th Amendment expressly reserves any rights not expressly stated in the Constitution to the states. Therefore, there is nothing in the Constitution that prohibits the duly-elected representatives in a state government from using the legitimate political process to allow any person to go to court and attempt to have a judge veto a parent's say in who gets to spend time with that child if a judge decides that he or she knows better than the parent.

Until this arbitrary judicial creation of extra-constitutional "rights" out of thin air ceases, we will continue to be under the oppressive thumb of judicial totalitarianism. Droopy, please join me in acknowledging Troxel v. Granville is another example of unelected judges inventing new rights that are not found in the Constitution and then using these so-called "rights" to do an end run around the legitimate democratic process and the rights of states under the 10th Amendment.

[_Socrates]

Mr. J, do you agree with judicial activism when it essentially writes out of the Constitution (the social compact between the people and its government on how much power that government shall have) limits that were expressly placed on that governmental power?

For example, Wickard v. Filburn, 1941. In that case, the Supreme Court had to presume that if Filburn had not been growing his own wheat for consumption by his family and farm animals, Filburn might have had to purchase grain from a co-op, which in turn might have had to purchase some (or more) grain grown in another state. Ergo, interstate commerce was involved and thus Congress had the power to regulate the wheat production on Filburn's farm. That type of judicial logic expanded the Commerce Clause to the point there is no limitation on the federal power. By judicial fiat, the limitation of power on the U.S. Government vanished.

In Judge Marcus's dissent on August 12, 2011 in the case of Florida v U.S. Dept of HHS (11th Circuit U.S. Court of Appeals) he was blunt in beginning his remarks by describing the majority decision (concluding that the federal mandate that individuals buy health insurance is unconstitutional): "In the process of striking down the mandate, the majority has ignored many years of Commerce Clause doctrine developed by the Supreme Court. It has
ignored the broad power of Congress, ... .' Judge Marcus is so ingrained in judicial activism he does not even give lip service to the fact that the Commerce Clause was an exception to the general limitation on the power of government and should, as an exception, be narrowly interpreted.

Don't count me as a Skousenite. He was extreme in his comments. But there are seeds of truth in the notion that judicial activism is a threat to the social compact that the Constitution was intended to be.

[_moksha]

Do you still have that glove O.J. dropped, Johnnie, or did you donate it to the ACLU?

You might add that this was a glove that O.J. could only have dropped because of those pointy headed justices on the Warren court, who allowed this integration of society by overstepping their bounds and sullying our sacred Constitution. These liberal decisions of the "so called" Supreme Court must have rankled Professor Skousen something awful. Both he and Elder Benson realized that insuring the rights of those not entitled to hold the Priesthood would only advance the cause of International Communism.

.

[_Darth J]

Socrates--

As with most anti-intellectual leftists who have been raised on a steady diet of public school pabulum, you are confusing the issue. You seem to think that the reasoning behind a court decision is what matters and what justifies the result, under the assumption that this has been a principle of Anglo-American jurisprudence for several hundred years.

Let me make it simple for you:

If a one-sentence summary of a court decision seems to affirm my personal value judgments, regardless of what the practical effect of that decision might be, then it is judicial review.

If a one-sentence summary of a court decision seems to say that people have the freedom to do things that are inconsistent with my personal value judgments, regardless of what the practical effect of that decision might be, then it is judicial activism.

[_EAllusion]

There's a major, major difference between opposing expansionist readings of the commerce clause or opposing using personal political views to guide interpretation of laws and denying judicial review. Judicial review is just the notion that the judiciary has the right to interpret and invalidate laws (or prescribe policy for their execution) passed by the other branches of government so they are in accordance with higher law. State legislatures are passing asinine, transparently unconstitutional laws all the time. Tennessee recently attempted to make it illegal post anything online that causes "emotional distress" to someone else without "legitimate purpose". That's blatantly unconstitutional. Judicial review just says the courts have the authority to strike them down because they are against the more fundamental law of the land.

On the far, far, right there is a belief that judicial review is not constitutional and, moreover, is a bad thing. It's ultimately motivated out of their intense dislike for how the courts have ruled in some famous cases.

In that hilariously awful, yet vaguely frightening painting by Mormon artist Jon McNaughton, you can see a judge covering his face in shame in Satan's corner over famous Supreme Court cases the painter hates. One of those is Marbury vs. Madison, which established the precedent of judicial review.

[_moksha]

But there are seeds of truth in the notion that judicial activism is a threat to the social compact that the Constitution was intended to be.

While in the cloud of Eisenhower liberalism, Earl Warren became convinced that neither the President nor Congress could ever right the wrong of state sanctioned racial segregation. What he failed to realize in his stupor of thought liberalism, is that these exact same people he was championing were ineligible to hold God's Priesthood.

You can certainly see the dangers of judicial activism in this example. Congress was not paralyzed by a desire to please the White Citizen's Councils of the Southern States, instead they were actively affirming God's will in seeing that the less valiant in the preexistence were punished accordingly.

.