GUEST COLUMN

(11/22/2005)

Disorder in the Courts

Civilization requires the rule of law

By Dr. Allen Unruh

Richard Hopewell, attorney in Sioux Falls, last month wrote an article (Sioux Falls Argus Leader) taking several of my statements out of context regarding the new "Jail For Judges" initiative. His article didn't discuss one true issue connected with the Judicial Accountability Initiative Law (J.A.I.L).

The majority of Americans now feel that our country is in a state of "judicial crisis" with activist judges. This is an issue that crosses all socio-economic and political barriers. For instance, just recently a judge in California ruled that illegal aliens who are convicted criminals have privacy rights and the justice department can't even release their names, but convicted American criminals don't have privacy rights. A judge ruled in Oregon that live sex acts in public are protected expression under the constitution.

Judges are re-defining marriage against the vote of the people and in Massachusetts even ordering the state legislature to pass a law. Government by judges is no longer democracy or represents our Republic (rule by the people). It is an oligarchy (rule by a few). And when judges not only rule but do so under no restraint, it is tyranny!

Justices are endorsing terrorists' rights, and importing Foreign Law. Is that in the Constitution? Justices are granting illegal immigrants rights equal with citizens; Prop 187, Nov, 20 1995 California. Missouri voters defeated a tax increase, but Federal Judges overruled; 8th circuit Missouri v Jenkins Apr 18, 1990. Arkansas passed term limits for politicians but Federal Judges overruled; Sup. Ct, Term limits v Thornton, May 22, 1995.

The liberal supreme court justice who erected the "separation of church and state" was a member of the Klu Klux Klan. Decades of judicial activism have made the Supreme Court the greatest threat to American Freedom.

The framers of the constitution, conscious of the fallibility of man, devised a structure of checks and balances to prevent any one branch of government from exercising too much power. But while the founders limited the executive and legislature, they stopped short of sufficiently checking and balancing the judiciary. And why should they have? The founders assumed that the courts would be checked and balanced by the law, ultimately, the Constitution. And, where courts must decide a question now addressed by a statute, they follow precedent.

The founders never dreamed there would come a time when an American court would presume to make up and then enforce rights never mentioned in the Constitution. They could never have imagined that a court would ignore precedent to the extent of throwing out thousands of years of family law to open up marriage to people of the same sex.

They could never have conceived of postmodernist legal theory, which recognizes no fixed, objective meaning in the law; which believes interpretation of the law is an arbitrary construction; which believes statutes and the Constitution itself are ever-evolving, relativistic paradigms that can be used to impose the judge's personal opinion.

Thomas Jefferson said, "The Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." Sept. 6, 1819 James Madison: "All men having power ought to be distrusted."

Mr. Hopewell quotes "Marbury V. Madison” in 1803 where the Supreme Court determined it has the power to decide cases about the constitutionality of congressional or executive actions and overturn them. And this, quite literally, is the foundation of the runaway power exercised by the federal courts to this day. It was crafted by John Marshall - chief justice. He wrote the decision, not to set a revolutionary precedent, but to deny the new president, Jefferson, his longtime political rival, an opportunity to rebuff a Supreme Court controlled by Jefferson's Federalist's opponents."

The Declaration of Independence says, "Whenever any government becomes destructive of these ends, it is the right and the duty of the people to alter or abolish it. That's what J.A.I.L is all about. Preserving the Rule of Law for future generations.

And that's why SD will be the first state in the nation to hold judges accountable only when they violate the constitution by over-ruling state referendums and/or legislation passed by elected officials.  

Dr. Allen Unruh is a Sioux Falls physician, co-founder of the Abstinence Clearinghouse, and serves on the South Dakota Task Force to Study Abortion.