Wednesday, October 22, 2014

Solomon's Specter

"Cut the living child in two, and give half to one woman and half to the other!”

Then the woman who was the real mother of the living child, and who loved him very much, cried out, “Oh no, my lord! Give her the child—please do not kill him!” But the other woman said, “All right, he will be neither yours nor mine; divide him between us!”

Then the king said, “Do not kill the child, but give him to the woman who wants him to live, for she is his mother! "

What more effective government is there than an all-wise King ? Time has proven, however, that wise Solomons are inevitably followed by foolish Rehoboams.

The Framers of the American experiment knew their history. Carefully, and with deliberate forethought, they refused to enthrone the judiciary.

There is no liberty, if the judiciary power be not separated from  the legislative and executive. Were it joined with the legislative, the  life and liberty of the subject would be exposed to arbitrary control;  for the judge would be then the legislator. Were it joined to the  executive power, the judge might behave with violence and oppression.  There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers,  that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

Federalist #78

This balance of power is key to preventing tyranny. The allure of the wise and powerful Solomon, however, has proven difficult to resist.

The latest effort is coming from the "equal protection" clause of the 14th Amendment. Passed in 1868, its sole purpose was to prevent freed slaves from being shackled again after the Civil War. They never meant for all people to be treated equally in all circumstances. If they knew Courts today would take their words and demand that homosexuals be granted the privilege of marriage, they would spin in their graves, haunted by Solomon's specter.

We discriminate regularly - for example, in employment, and disallowing felons the ability to vote and own guns. Have you looked closely at your tax return lately? We give tax breaks for various and sundry groups, thus denying it to others.

The 14th Amendment was never meant to enable the select few wise ones to substitute their own wisdom in place of the American people. Yet, that is what has happened. To quote Justice Harlan from Reynolds v Sims (1964):

"[the Court's] view, in short, is that every major social ill in this country can find its cure in some constitutional principle and that this court should take the lead in promoting reform when other branches of government fail to act."

If the law is to be created by the judicial branch, then where stands our republic? Is the law created by the representatives of the people, or created by five black robes? Are we a republic, or an oligarchy?

To quote Washington in his Farewell Address:

"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."

In the judges' attempts at playing Solomon and divining when it is correct to cut the baby in half and when it is not, they are destroying the republic.

Some will cheer when they achieve a political victory via the Court not able to be obtained via the Congress, President, and state governments. But, at some point in time, the Solomons will err too greatly in their divination and what will be finally and completely cut in half will be the republic itself.