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Federal Courts And The Imaginary Constitution |
Current rating: 2 |
by Congressman Ron Paul
Email: http://www.house.gov/paul/mail/welcome.htm (unverified!) |
16 Aug 2003
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Ridiculous as sodomy laws may be, there clearly is no right to privacy nor sodomy found anywhere in the Constitution. There are, however, states' rights -- and Texas has the right to decide how to regulate sex using local standards. |
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Federal Courts and the Imaginary Constitution
by Rep. Ron Paul, MD (R-Surfside, TX), LewRockwell.com, August 12, 2003
It's been a tough summer for social conservatives, thanks to our federal courts. From "gay rights" to affirmative action to Boy Scouts to the Ten Commandments, federal courts recently have issued rulings that conflict with both the Constitution and overwhelming public sentiment. Conservatives and libertarians who once viewed the judiciary as the final bulwark against government tyranny must now accept that no branch of government even remotely performs its constitutional role.
The practice of judicial activism -- legislating from the bench -- is now standard for many federal judges. They dismiss the doctrine of strict construction as hopelessly outdated, instead treating the Constitution as fluid and malleable to create a desired outcome in any given case. For judges who see themselves as social activists, their vision of justice is more important than the letter of the laws they are sworn to interpret and uphold. With the federal judiciary focused more on promoting a social agenda than upholding the rule of law, Americans find themselves increasingly governed by men they did not elect and cannot remove from office.
Consider the Lawrence case decided by the Supreme Court in June. The Court determined that Texas had no right to establish its own standards for private sexual conduct, because gay sodomy is somehow protected under the 14th amendment "right to privacy." Ridiculous as sodomy laws may be, there clearly is no right to privacy nor sodomy found anywhere in the Constitution. There are, however, states' rights -- rights plainly affirmed in the Ninth and Tenth amendments. Under those amendments, the State of Texas has the right to decide for itself how to regulate social matters like sex, using its own local standards. But rather than applying the real Constitution and declining jurisdiction over a properly state matter, the Court decided to apply the imaginary Constitution and impose its vision on the people of Texas.
Similarly, a federal court judge in San Diego recently ordered that city to evict the Boy Scouts from a camp they have run in a city park since the 1950s. A gay couple, with help from the ACLU, sued the city claiming the Scouts' presence was a violation of the "separation of church and state." The judge agreed, ruling that the Scouts are in essence a religious organization because they mention God in their recited oath. Never mind that the land, once privately owned, had been donated to the city for the express purpose of establishing a Scout camp. Never mind that the Scouts have made millions of dollars worth of improvements to the land. The real tragedy is that our founders did not intend a separation of church and state, and never envisioned a rigidly secular public life for America. They simply wanted to prevent Congress from establishing a state religion, as England had. The First amendment says "Congress shall make no law" -- a phrase that cannot possibly be interpreted to apply to the city of San Diego. But the phony activist "separation" doctrine leads to perverse outcomes like the eviction of Boy Scouts from city parks.
These are but two recent examples. There are many more, including the case of Alabama Chief Justice Roy Moore, who was ordered by a federal court to remove a Ten Commandments monument from Alabama courthouse property.
The political left increasingly uses the federal judiciary to do in court what it cannot do at the ballot box: advance an activist, secular, multicultural political agenda of which most Americans disapprove. This is why federal legal precedents in so many areas do not reflect the consensus of either federal or state legislators. Whether it's gun rights, abortion, taxes, racial quotas, environmental regulations, gay marriage, or religion, federal jurists are way out of touch with the American people. As a society we should reconsider the wisdom of lifetime tenure for federal judges, while Congress and the President should remember that the Supreme Court is supreme only over other federal courts -- not over the other branches of government. It's time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not.
Dr. Ron Paul is a Republican member of Congress from Texas. |
See also:
http://www.lewrockwell.com/paul/paul120.html
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Re: Federal Courts And The Imaginary Constitution |
by Dr. John Hilty
jhilty (nospam) shout.net (unverified) |
Current rating: 5
18 Aug 2003
Modified: 09:56:06 PM |
There are several problems with this article. First of all, it is by no means clear that the U.S. constitution fails to establish the "right to privacy." There are several provisions in the constitution that imply the "right to privacy," including the prohibition of unreasonable search and seizure. Spying on people's sex lives in the privacy of their homes could very well be regarded as an "unreasonable search" on the part of the government (whether local, state, or federal). However, the broader implications of Rep. Ron Paul's views are even more disturbing. If there is no "right to privacy," then what are the limits of government intrusion into our personal lives? What would prohibit the government from installing spy cameras and listening devices in the homes of private citizens for any reason whatsoever? Rep. Ron Paul apparently thinks this is okay as long as it abides by "local standards." However, this opens wide the door to Orwellian totalitarianism.
Another problem is Rep. Ron Paul's view of the anti-sodomy laws. He frames this as a conflict between federal and state rights, which should be resolved in favor of state rights. But why is that? If the state of Texas should decide that slavery was in conformity with "local standards," does that mean the federal courts should do nothing to intervene? Clearly, there are limitations to state rights. The anti-sodomy laws are more properly viewed as a conflict between individual rights and state rights, with the federal court functioning as a mediator. Specifically, the U.S. constitution and the Bill of Rights guarantees to individuals certain rights, such as the pursuit of happiness and liberty. It makes clear that the natural rights of private individuals should be the guiding principle of any liberal society, rather than the dogmas of authoritarian government, clerics, and other powerful vested interests of human society. Thus, the anti-sodomy laws can be be viewed as an infringement on the part of authoritarian government upon the natural rights of individuals to pursue happiness and liberty in accordance with their inclinations. In effect, such laws criminalize a sizable segment of the population even when no victims can be produced. When there are infringements imposed upon the pursuit of individual liberty and happiness, a heavy burden of proof falls upon those persons or organizations who propose to do away with individual liberty for the sake of an imagined "public good," whether or not it has been defined locally. Clearly, this heavy burden of proof has not been satisfied by any reasonable means.
The third problem is Rep. Paul's view of the courts, and the vital role that they can play in our system of checks and balances. Rep. Paul clearly doesn't want the tyranny of the "local majority" to be held in check by the courts, even when the natural rights of individuals are grossly violated. Rep. Paul proposes to weaken the courts by limiting the tenure of federal judges, thereby politicizing the judicial system so that it becomes more redundant with the legislative process. However, this would weaken one of the fundamental reasons why the courts were created by the U.S. constitution in the first place: To protect the rights of unpopular individuals against the occasional abuses of majoritarian tyranny that sometimes emerges from the legislative process. As a matter of fact, the biggest problem of the courts is that they often fail to stand up to the blatant shortcomings of popular prejudice and the knee-jerk reactions of legislators, which history has revealed time and time again.
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