Judges Gone Wild

Friday, March 25, 2005

Page 7

IN MY OPINION (Column)

Judges Gone Wild

By RAY HAYNES

(The writer represents the 66th Assembly District which includes portions of western Riverside County and northern San Diego County.)

They learn it in school. And it is obscene. How they get away with it, I don’t know, but you see this obnoxious and obscene behavior everywhere.

It is what you see on the news everyday of our courts out of control-of our judges gone wild. Wild in the sense that they believe they are not restricted or controlled by the constitutions of our federal or state government, the laws enacted by those governments, or the traditions of the judiciary developed pursuant to the constitutions and the principles of this country. These judges gone wild need to read Montesquieu, and his principle of separation of powers.

It was unusual at the time of our founding for the judicial and legislative powers to be separated. Montesquieu thought combining these powers was dangerous. If a judge writes the law, and then applies it, the judge loses the objectivity that is necessary to fairly and impartially apply the law.

If, on the other hand, the judge is free to ignore the law, and apply his or her own whim, the law becomes arbitrary; the society is governed by the rule of man, not the rule of law.

In California, the rule of law is in danger. A judge in San Francisco ruled that the California Constitution, enacted in 1870, prohibits discrimination in our marriage laws against homosexuals. Put aside the fact that the laws of marriage are equally applied. Every man, regardless of sexual orientation, can marry a woman, and every woman, regardless of sexual orientation, can marry a man.

The more important issue is that no rational person can maintain that the people of this state, at the time the Constitution was enacted, intended any part of that constitution to require that the state recognize same sex marriage. The judge in this case just ignored that common sense proposition, and rewrote the Constitution. The judge ruled that our Constitution required the state to recognize marriage between two men or two women.

The ruling is nonsensical, but understandable because this judge has to face the voters of San Francisco in his next election. Increasingly, judges are all too willing to abandon their oaths of office to mimic popular culture. Our Supreme Court recently ruled that certain international laws and treaties (that did not exist when our Constitution was drafted) ought to define the meaning of our constitutional principles. Now, a judge in California simply ignored history and precedent, and rewrote the California Constitution, ignoring the will of over 62% of the California electorate. This is the picture of a judge gone wild.

These judges are taught to do this in law school. They are taught that the Constitution is a “living” thing, a thing who’s meaning changes with the times. While it is true that the principles of the Constitution are timeless, their meanings do not change.

Changing the Constitution requires an amendment, enacted by the Legislature and put before the people to gain their assent. A judge that changes constitutional principles without an amendment is acting like a lawmaker, and that is outside his or her power or expertise.

Elected representatives are designated as the lawmakers because they are in the best position to balance the needs of their constituents. They are in the best position because they are held accountable for their decisions on laws through the electoral process.

Lawmakers set the rules under which disputes are resolved, judges resolve the disputes. When judges cross the line, and start to write the rules, they undermine the system. Those who wrote the Constitution understood how to strike the balance. The judge in San Francisco obviously did not.

Judges gone wild is not a pretty sight. It is destroying the people’s faith in our judicial system.