The New Federalism Part IV: Establishing Justice  

Tuesday, October 04, 2005

First, I want to thank everyone for your patience in waiting for this fourth post on the New Federalist platform. In this post, I will analyze the concepts set forth in part 4 of the platform, Establishing Justice.

Establishing Justice

A major cause the Founders cited as justification for declaring the American colonies independent was that the king had "obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers," that he had "made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries," that he had hewed to double standards in matters before the courts by protecting his soldiers through mock trials while denying trial by jury to colonists, that he had often transported colonials overseas for trial, and that he had pursued a course of treating the free system of laws so cavalierly that justice was no longer possible.

It is therefore unsurprising that of the 10 constitutional amendments composing the Bill of Rights, fully half deal with matters of citizen rights in courts of law. This demonstrates the great importance the Founders placed on citizens having recourse to just courts. The experiences of colonists in the courts established by the king had proven that fair, just laws could not be based in the interpretation of courts subject to a single dominion but that the only possibly just laws were necessarily treated as equally binding in application to all judges and parties standing in court disputes.
These laws are to be equally binding, yet the courts routinely rule against the rights of the people. Every one of the amendments that make up the Bill of Rights has been violated by the courts at one time or another - and with the blessings of the legislators who created the law and the executives who signed it.
As discussed elsewhere in this Platform, citizen rights are best guaranteed by courts that follow the constitutionally specified plans for their operations. A judiciary that stays within the narrow bounds laid out in the Constitution for this branch of government views its role as serving to guarantee individual citizens' rights and states' rights, as described plainly in the Constitution, in cases of dispute. As also discussed elsewhere in this Platform, however, the courts in our land today have lost sight of their proper constitutionally defined role. Our courts have substituted in its place usurpations of legislative powers and functions; and the courts have further failed to uphold the separation of powers as clearly set forth in the Constitution's model for our government, by refusing to rein in an overreaching executive branch of government. We New Federalists believe the remedies described elsewhere in this Platform, including adopting the sense that judges engage in the "good behavior" required for retaining office only while honoring their sworn oaths to support the Constitution, will aid in rectifying this abandonment of principles restraining the judiciary to its constitutional bounds. Similarly, periodic review of judges' records on these grounds, together with term-limited courts, should also assist in these efforts.
The courts don't uphold the separation of powers because they are guilty of the same overreaching usurpations the executive and legislative branches of government are. Periodic review of their records and term limits may not completely solve the problem, but it will make these judges more accountable, which will help.
The effects of the American judicial system's failure to enact the judiciary's constitutionally defined role have been massive and monumental. Among the victims of this failure are individual citizens who no longer are accorded their just and fair rights, communities terrorized by criminals no longer restrained by appropriate punishments meted out by the courts, and the portion of the citizenry at large that has lost faith in our government's ability to restrain itself.
All true. Add to this fact that criminals are no longer restrained by an armed populace thanks to the many violations of the Second Amendment, and it's no wonder people have so lost faith.
Nevertheless, although the state of the courts is spiraling deterioration, as a result of taking on improper functions and powers while shirking specifically defined duties and responsibilities, we New Federalists can clearly set forth a few essential justifications and lines of reasoning that ought to restrain our courts. We therefore affirm our support for the following principles when at issue in United States courts, and we suggest that these principles be defended vigorously and argued robustly in our courts of law.

Citizens' Rights

The most fundamental right that courts should guarantee individual citizens is the right to life. The Constitution's 5th Amendment states that no person shall be "deprived of life ... without due process of law." Currently the courts fail in upholding the right to life because of flawed assumptions on two grounds.

First, the courts have faultily arrogated to themselves the power to define which classes of humans are accorded the right to life, and which are not. As the Declaration of Independence so boldly and clearly affirms, God endows all humans equally with these rights, so that no court decision may permissibly define away these rights for any human, and certainly not en masse for any separate and defined classes of human beings. Second, the courts have faultily abandoned the principle of ensuring equality before the law when acceding to the view that certain different classes of individual humans bear rights that others do not.

These two entwined strands of deeply flawed assumptions, in contravention of the principles upon which this nation was founded, have produced bad judicial decisions in several areas. The consequences of these lines of faulty reasoning have been clear -- and clearly devastating to the foundational principles of rights and equality. If the courts may properly define rights away for any group or class of citizens, then the courts may properly define away, and thus deny, rights for all citizens. If individual citizens' rights are not treated as inhering in perpetuity in the individuals themselves, then no rights can truly be claimed to exist.

One major set of such faulty judicial decisions asserted a right to privacy that included a right to abortion. A similar set of improper court reasoning decided a right to euthanasia, or more aptly, the "right" to grant physicians permission to participate in killing.

Another set of flawed judiciary actions involved retreat from adherence to ensuring equal rights of citizens before the law, by settling on specific categories of classes and groups that would be recognized by courts in contradistinction to members of other groupings that would not be so recognized. But equality under the law demands no cognizance of group membership or characteristics in having access and recourse to courts. If such definitions are retained, there is no equality before the law. Hate crimes laws, for instance, have violated this principle of equality, as have general court-endorsed definitions of citizen classes on the basis of private sexual preferences or practices.

In a similar vein, an abandonment of seriousness regarding the rights to liberty and property has been manifest in United States courts. Arguably, excessive taxation, for instance, can be viewed as a denial of the rights to both liberty and property. Taxes higher than necessary for constitutionally specified purposes of government can be equated to involuntary servitude, as well as to "takings" of private property "for public use without just compensation" (5th Amendment).

However, we New Federalists support the death penalty, as implied by the constitutional provisions explicitly citing capital offenses, as well as the 5th Amendment's indication that a person may properly be deprived of life after due process of law in the courts. But simultaneously, as noted elsewhere, we believe a principled position concerning the death penalty requires that it be treated with absolute equality on all sides. For example, we do not support reserving the death penalty only for capital crimes against certain classes of citizens but not other classes, as defined in terms of characteristics of victims. If punishment is held to have a deterrent effect, then reserving the death penalty for certain classes of citizens only, say, for federal officials and officers but not for private citizens, violates the principle of equality before the law, by failing to protect equally as a consequence of unequal application.

In general, we believe that the courts should be guided by the 9th Amendment's statement, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," and the 10th Amendment's provision that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

States' Rights

We New Federalists favor justice that adheres to a firm and clear understanding of federalist principles, defending such principles in every decision. We believe that in court decisions relevant to disputes about powers assigned to the levels of government, judges should be guided by the 10th Amendment's statement, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
New Federalists are indeed pro-life, and our position is clearly stated above. This portion of the platform seems to have been written more recently than its much earlier origin. In this platform, we learn that New Federalists would have been in favor of keeping Terri Schiavo alive, and that we would oppose the anti-property rights decision in the Kelo case (the platform predates both of these situations). We support the death penalty as punishment for certain capital offenses, as long as it is applied uniformly throughout the populace. Most importantly, if the Constitution does not specifically delegate a power or a right to the government, it is AUTOMATICALLY delegated to the states and the people, because the Constitution says so.