August 29th 2015


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Articles from this issue:

COVER STORY Same-sex marriage and the SOGI ideological agenda

FAMILY AND SOCIETY Canada: basic freedoms lost since same-sex marriage came to town

CANBERRA OBSERVED Abbott, Shorten fixin' for some feudin' next year

OBITUARY RIP Frank Scully, last survivor of the Labor Split

EDITORIAL Colleagues digging holes Tony Abbott has to fill in

EDUCATION There must be a better plan than Naplan

HISTORY OF INDONESIA Sukarno makes way for Suharto's "New Order"

HISTORY Fateful indecision: the tragedy of Rabaul

FAMILY LIFE A father's presence in the home: part I

SCOTUS: JUDICIAL ACTIVISM On the having of the cake and the eating of it too

LIFE ISSUES When an abomination becomes good business

CINEMA Spy sequel vies with a spy history repeat Mission Impossible: Rogue Nation and The Man from U.N.C.L.E.

BOOK REVIEW An important biography of B.A.

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JUDICIAL ACTIVISM On the having of the cake and the eating of it too


by Dr Augusto Zimmermann

News Weekly, August 29, 2015

This article is an abridgement of a paper Dr Augusto Zimmermann presented at the National Marriage Day – Witness to Marriage, at the Victory Life Centre, in Perth on August 1, 2015.

The recent ruling in Obergefell v Hodges (the same-sex marriage case) is undoubtedly one of the worst decisions the U.S. Supreme Court has made in all its history. It has no basis in principle or tradition.

Under the constitutional model which the American framers created, the role of judges is to apply the law but not to make law; they are appointed to administer justice according to the law and not to change it or undermine it. As one might say, a judge who dislikes the constraints of the judicial role because it prevents the fulfilment of a specific policy or agenda, should leave that group, join or start a political party, and seek to enter a legislature.

In every constitutional democracy there are three branches of government: the legislative, the executive and the judicial. By virtue of the first, the state creates laws and amends or abrogates those that have been already enacted. By the second, the state administers the existing laws and establishes public security by protecting against possible invasions. By the third, the state punishes criminals or determines the legal disputes that arise either between individuals, or between the state and individuals, or between the federal government and a provincial state.

Although the separation of powers doctrine has a long history that can be traced back to Aristotle, it is more evident in Montesquieu’s The Spirit of the Laws. First published in 1748 this great classic soon received widespread acclamation. It became particularly popular in America during debates over the ratification of the U.S. constitution.

In The Spirit of the Laws one finds the remark that “political liberty is to be found … only where there is no abuse of power”. And yet, as its author reminds, “constant experience shows us that every [person] invested with power is apt to abuse it, and to carry [his/her] authority as far as it will go”. To prevent the abuse of power, Montes­quieu asserted, ‘it is necessary from the very nature of things that power should be a check to power’.

Act now, think later

It is sometimes argued that judicial activism may be justified if the legislature is uninterested in reforming certain aspects of the law when existing rules appear defective. There is today a tendency to suggest that those charged with interpreting the constitution should do so in such a manner as to produce results that accord with the prevailing notions of the day, as if it were the duty of judges to resolve controversial matters that are in reality political-ideological conflicts.

The goal is to liberate these judges from the constraints of the legal method so that their personal values can be imposed on the rest of us. The final result, however, is the abnegation of law and gradual replacement of the rule of judges for the rule of law.

According to the late American constitutionalist, Thomas M. Cooley: “The property or justice or policy of legislation, within the limits of the constitution, is exclusively for the legislative department to determine; and the moment a court ventures to substitute its own judgement for that of the legislature, it passes beyond its legitimate authority, and enters a field where it would be impossible to set limits to its interference, except as should be prescribed in its own discretion.”

The basic premise of the majority in Obergefell is that the right to personal choice is inherent to the concept of individual liberty. They thus candidly concluded that same-sex couples who are harmed for not being allowed to marry “need not await legislative action before asserting a fundamental right”, since “the dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right”.

In his dissent Justice Samuel Alito said the majority had given to the constitution a distinctively postmodern meaning. He noted: “The constitution says nothing about a right to same-sex marriage, but the court holds that the term ‘liberty’ in the Due Process clause of the 14th Amendment encompasses this right to liberty.” For this reason, any state law that denies same-sex couples this “fundamental right” must be held invalid to the extent that it excludes them from civil marriage on the same terms and conditions as opposite-sex couples.

In his dissent Chief Justice John Roberts explained that whether same-sex marriage is a good idea should be of no concern to his colleagues on the bench. He points out: “A state’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history” can hardly be considered a violation of a fundamental right. The right of same-sex couples to marry is declared a “fundamental right” inherent to the liberty of the person simply because five unelected members of the Supreme Court wishes it to be so. This exercise in raw judicial activism confounds the distinction between legislative and judicial functions.

Justice Antonin Scalia explains: “This is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the states are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgement’. A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

Judges above the law

When an unelected body of nine lawyers effectively becomes a “god” unto itself, such a court is enthroned as the all-powerful ruler over the life, liberty and property of the people, deciding which rights are fundamental and which are not. It is really the case of saying: “The Supreme Court gives, the Supreme Court takes away; blessed be the name of the Supreme Court!”

Since this approach offers no objective standard for the expanded latitude of how rights might “evolve”, once it is well ingrained, the swings of the ideological pendulum must allow the judicial elite an opportunity to go in any direction according to personal predilections.

By arguing that their special training in the law somehow deems them worthy of expanding the interpretation of “fundamental rights”, as Professor William Wagner noted, “judges gaze into jurisprudential penumbras to subjectively fashion fundamental liberty interests they personally believe require judicial protection from politically accountable expressions of the people’s will (for example, the right to contraception, abortion, etc.).

“Proponents of this approach opine that unelected judges are entitled to personally evaluate whether evolving societal customs justify the judge deeming an interest implicit in the concept of ordered liberty. When the judge concludes in the affirmative, the judge judicially anoints the interest with ‘fundamental’ status’.”

In his dissent Chief Justice Roberts explains: “Expanding a right suddenly and dramatically is likely to require tearing it up from its roots. Even a sincere profession of ‘discipline’ in identifying fundamental rights … does not provide a meaningful constraint on a judge, for what he is really likely to be ‘discovering’, whether or not he is fully aware of it, are his own values.”

Hence, whether a right receives constitutional designation as “fundamental” now depends on the personal values of a majority of lawyers sitting on the bench and how they “evolve” the constitution according to the so-called “changing needs” of society.

Yet, as the late Sir Harry Gibbs, former Chief Justice of the High Court of Australia, pointed out: “The suggestion that the court should formulate a new rule in the light of contemporary values is open to the objection that there is usually a diversity of opinion as to what those values are …

“In any case to regard social attitudes as a source of law tends to undermine confidence in the courts, when it is thought that the judges have based their decision on their own notions rather than on the law, and it also renders the development of the law unpredictable since the values which the court recognises are in effect those in the minds of the judges themselves.”

Furthermore, as the late judge Robert Bork properly stated: “The values a revisionist judge enforces do not, of course, come from the law. If they did, he would not be revising. The question, then, is where such a judge finds the values he implements. … A judge inserting new principles into the constitution tells us their origin only in a rhetorical, never an analytical, style.

There is, however, strong reason to suspect that the judge absorbs those values he writes into law from the social class or elite with which he identifies … An elite moral or political view may never be able to win an election or command the votes of a majority of a legislature, but it may nonetheless influence judges and gain the force of law in that way.

“That is the reason judicial activism is extremely popular with certain elites and why they encourage judges to think it the highest aspect of their calling. Legislation is far more likely to reflect majority sentiment while judicial activism is likely to represent an elite minority’s sentiment. The judge is free to reflect the ‘better’ opinion because he needs not to stand for re-election and because he can deflect the majority’s anger by claiming merely to have been enforcing the constitution. Constitutional jurisprudence is myste­rious terrain for most people, who have more pressing things to think about. And a very handy fact that is for revisionists.”

Take, for example, the present composition of the Supreme Court. As Justice Scalia points out in his dissent: “This Court … consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. … Not a single south-westerner … Not a single evangelical Christian (a group that comprises about one-quarter of Americans), or even a Protestant of any denomination.

“The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges … But of course the judges in today’s majority … say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: ‘no social transformation without representation’.”

Chief Justice Roberts comments: “There will be consequences to shutting down the political process on an issue of such profound public significance. Closing the debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.”

I am convinced that history will prove him right.

In Obergefell a majority of five unelected lawyers put a stop to the democratic process by removing an important issue from the realm of democratic deliberation. This is why Justice Alito was so correct to state that such an exercise of raw judicial power “usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage … It evinces … the deep and perhaps irremediable corruption of [the American] legal culture’s conception of constitutional interpretation.”

Dr Augusto Zimmermann is Law Reform Commissioner, Law Reform Commission of Western Australia, Senior Lecturer in Legal Theory and Constitutional Law, Murdoch Law School, former Associate Dean (Research) and Director of Postgraduate Studies at Murdoch, President of the Western Australian Legal Theory Association, and Professor of Law (Adjunct) at Notre Dame University, Sydney.




























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