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October 30, 2007

An Inescapable Conclusion

Farrell Keough

We have come a surprising distance on our road towards "Enlightenment." If you will remember, we began our discussion recognizing the truths of our honorable Montgomery County Executive, Democrat Isiah "Ike" Leggett informing us on how our enlightened leadership has made Maryland a sanctuary for illegal intruders.

We saw this enlightened view had its foundations from years of other enlightened views and national decisions. For instance, we noted that the Supreme Court's Plyer decision, forcing us to educate the children of illegal intruders, was based upon a determination that the Founding Fathers erred in their creation of our Constitution. Rather than meaning what they stated in the Equal Protection clause, the Founders inadvertently added "jurisdiction" when they obviously meant to protect people who came to our nation under illegally.

Finally, we realized how the Supreme Court usurped power unto themselves through the concept of "judicial review" in the Marbury v. Madison decision. While the Founders debated even the creation of a Supreme Court, some of their worst fears have come to fruition with the power this body has taken onto itself.*

Once this new found power was inculcated in our national lexicon, the movement towards further power did not end. At the end of our time together, we recognized that final tier in judicial review and determination was the Constitution of our United States. The document which forged and founded our nation carries the least amount of authority during decisions by our courts.

We will now move into the realm of interpretation called "judicial activism." We must note, however, the elusiveness of this term. "During oral arguments for [the] Republican Party of Minnesota v. Kelly, [Justice Antonin Scalia] claimed that calling oneself a strict constructionist while criticizing others for being judicial activists 'doesn't mean anything. It doesn't say whether you are going to adopt the incorporation doctrine, whether you believe in substantive due process. It's totally imprecise. It's just nothing but fluff.'"**

In its most simple definition, Arthur Schlesinger, Jr., defined judicial activity in 1947 by noting two distinct camps: those who recognize the link between politics and laws as inseparable. and those who believe laws have fixed meanings and deviation from those fixed meanings is inappropriate, no matter which groups may benefit.**

In other words, those who would advocate for judges determining laws versus those who believe that practice is only in the hands of the legislature. Those who would determine laws believe that the defenseless masses are in need of an advocate, while those who believe this is in the hands of the legislature believe that the court is wholly ill-equipped to render new legislation.

When one considers the realm of Civil Rights and the fight by Republicans to end discrimination, this argument may well carry a different expression. The courts do not exist simply as a mechanism for punitive recourse. Protection for those who have no power is another element of our judicial system. Hence, one must hold both of these perspectives in the balance while determining just what constitutes a court overstepping its authority.

One of the factors that perturbs this analysis is that lawyers are the general source for interpreting these decisions. As a group, lawyers are well versed and very persuasive. This is both a help and a hindrance. One must cut through the well versed apologetics and get to the 'average Joe' truth.

For instance, the concepts of horizontal versus vertical precedent. If a court is on the same level, (for instance, two State Supreme Courts) their previous decisions on law are considered to have horizontal precedence. But, if a lower court is deciding upon a case in which a higher court has already made a determination, this is considered vertical precedence and the higher court should have the dominant opinion.

Further complicating these issues are concepts of the types of possible judicial activism. Were decisions made by disregarding previous determinations? In other words, did the court or judge simply disregard previous decisions and determine what they believed was best. While this may seem straight forward, determining that someone disregarded known information is difficult, but not impossible, to prove or establish.

Was this a case of providing guidance to the plaintiff after the decision, or was this a situation of the court usurping the authority of the legislature? Some argue that if a decision is made by the court without providing guidance for proceeding, those who have been injured are still in a defenseless state. Others argue that "[c]ourts are the branch least competent to provide long-range solutions acceptable to the public."**

These kinds of arguments and issues are what complicate the process of determining just what constitute "judicial activism." Lawyers are skilled in presenting machinations to obfuscate and distract simple and clear cut interpretations and understandings of the law and our Constitution.

Two very different individuals give us a concise method to come to consensus as to what, in general, constitutes judicial activism. Diarmiud F. O'Scannlain noted: "I would define 'judicial activism' to mean the actions of judges who do whatever is necessary to rule as they personally prefer, regardless of what existing law provides." ***

William P. Marshall states that partisan activism occurs "when the judiciary uses its power to further a partisan agenda."****

While these two individuals hold very different political perspectives, the common thread of a court or judge wanting an outcome based upon their political perspective is unifying.

So, what can we determine? As previously noted, our original interest was the services we must offer to illegal intruders. We determined we would focus on a single issue; that of having to offer free schooling to the children of those who have stolen into our nation. The requirement is based upon the Plyer decision of 1982. This decision was established by determining that the Constitution does not mean what it actually states; that the Founding Fathers erred when composing this document.

This view of the Constitution is obviously beyond the scope and authority of the Supreme Court. To determine that even one passage of the Constitution is bereft of correct wording is a requirement of the legislature to change that guiding document of our nation. It does not constitute a carte blanche to the court to rewrite passages. Further, the court disqualifies itself by diminishing the founding document upon which its authority rests.

Not being a lawyer, it seems evident that numerous other aspects of this decision could be overturned based upon the obvious judicial activism of this decision. One hopes, for our future and the future of our children, that the issue of services having to be provided to illegal intruders will be carried forth again in the next session of either our Board of County Commissioners or at the state level.

This would not constitute an illegal action, per se, but would create a situation making a suit to fight this erroneous Supreme Court decision ripe. Having a government entity proceed with such an action would only bolster the case. Hopefully we will see true "enlightenment" in our future sessions of state or local government. Until then, stay enlightened Frederick.

* Men in Black: How the Supreme Court is Destroying America, Mark R. Levin, Copyright 2005.

** "The Origin and Current Meanings of 'Judicial Activism'", Keenan D. Kmiec, California Law Review, October, 2004.

*** Diarmuid F. O'Scannlain, On Judicial Activism, Open Spaces Q. [February, 29, 2004]

**** Conservative and the Seven Sins of Judicial Activism, Professor William P. Marshall, 73 U. Colo. L. Rev. 1217 (2002).

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