Letters to the Editor

• Chris:

  [Read the article: The Kucinich court decision and "judicial activism"]
  [Read more letters about this article: Here]

  Well then. We don't need judges. We should just have you tell us all what is objectively true and follow you and others who agree with you. I think you mistake what the role of judges is supposed to be. Their role is not to tell us what is true and to then fashion the law around their view of it- their politics.

  You mistake me. It isn't that I have some unique insight into truth or some special reasoning, but that a strong body of evidence exists done by competent experts seeking to discover the truth of the matter.

  And yes, the role of "judges" is precisely to tell us what is true and fashion the law around that belief of it. How could it be anything but? How else could a judge rule on a question of some homosexual claiming the state of NJ was wrongly denying him the right to marry, unless the judge understood the issue of what it meant to be a homosexual?

  The judge would have an obligation to hear legal and factual arguments from both sides, then he has to decide which factual account to believe, and thus apply legal reasoning to it. He's not limited to the options they provide of course, and can use precedents neither side brings up. But still, there is a measure of discerning what is, inherent to what judges do every time they bang the gavel.

  We have a framework of rights that exist for certain things. They are not up for debate. They can't be wiped away by majoritarian rule or impulse. But when a certain elite comes along and suddenly says that "society" has a new view on things and that they are right and all laws must be changed to reflect this new "Right" view- and then a judge says- Gee I think your view is the correct view now- so all those laws we once had? Gone. Why? Because I am right. You can't have rule of law under such circumstances.

  I can't figure out how you think this works. What protects those rights in your conception of a society where judges cannot strike down laws? Without judges, they actually can be wiped away on majoritarian impulse. What prevents a legislature from passing an unconstitutional law if no one can gainsay them? Please don't say elections because we have reams of unconstitutional laws that were passed that no legislator was ever in danger of losing his seat over.

  You do have a point that I have conflated objective reality and what society believes in a questionable way. Let me clarify: The "critical mass" of people who believe gays should have the right to marry was large enough and based on enough evidence for someone to be able to convince a court of that case. Judges are imperfect arbiters too, and a novel theory that is completely correct will bear very little legal weight until evidence for it amasses. So the argument that gays are normal people who deserve equal treatment only makes sense if you have enough evidence that gays are in fact, "normal" and not immoral or destructive.

  Gays were normal 30 years ago and 300 years ago, just much fewer people knew it, and they had little to prove it with.

  So it's not that society's views should sway the judges per se, just that sound legal and factual arguments don't exist in a vacuum. To prove gays deserved equal rights one needed proof gays weren't aberrent. To do that, researchers needed money and time to do research into that, something that couldn't happen earlier for societal reasons.

  And once again, "society" seems to be marching in a new direction now. Perhaps not to your liking. What are going to hide behind having knocked down all the laws in the land to get the devil- when the devil turns on you?

  Since the devil I advocate is reason informed by objective fact, I'm not too afraid.

  I'm not the one questioning the premise of a judicial branch empowered to enforce constitutional precepts.

  Permalink Tuesday, January 15, 2008 11:34 AM