There is method in the madness that is American politics. Among all the posturing, partisan rhetoric, back-biting, and power struggles, there are some basic truths that I think have been forgotten through it all.
The US Gubment is broken down into three branches. The Executive branch executes, that is, enforces laws, makes priorities and sets the tone. The Legislative branch makes the laws according to the will of the people. They are a body that represents a cross section of age, class, and culture. They write the plan so to speak. The Judicial branch is the final say through it all with the US Constitution and judicial precedent as its authority.
Think of the three branches as the hands on a clock. The Executive, transient and ever changing with the whim of the people, is the second hand. The Legislative, more measured less fickle, its movement almost imperceptible, is the ticking of minutes. The Judiciary, conservative and lumbering is the ever steady indication of hours.
The President can effect change only through executive order or policy insomuch as it doesn’t break any laws. Executive orders, such as a policy on gays in the military, may be removed with a stroke of one man’s pen. Policy changes of that type could possibly change every four years. Gays are in, gays are out. The President can also decide which laws are important or not. The business of the Federal Government is such that not all laws are enforceable. Where are our priorities. For one President it might be social services. For another it might be immigration. They are transient and subject to rapid change. We have a saying back in Missouri. If you don’t like the weather, wait five minutes. The same goes for Presidents.
Why is the President such an important figure? One: there is only one. Two: in the big scheme of things seconds are important because they are the only thing that happens right now.
The Legislative branch is a slower beast. If you look close enough at it, you can just barely see its movement. Like VH-1’s retrospectives of the 70’s etc. you can only see how silly you were given the shift of a decade. So it is with the Legislative branch. It is made up of young and old, male and female, different cultures, different socio-economic classes, and political ideologies. It is hard to get them to cooperate, to find an issue upon which they can all agree. When they do, you can bet with a reasonable amount of certainty that it is the will of the people.
And, damnit, I like it that way. I want my Legislature to be slow, not too efficient, not too unified, not too smart. I want them to reflect us, and our spirit is pretty constant – at least over the decades. Change is good, but changing too quickly is disruptive.
The Judiciary has been in the news recently. Conservatives decry "activist judges" as violating the constitution by forgetting their place as the creeping hours of the day. I actually agree, but not for the reasons conservatives say. Conservatives only complain when activist judges are doing things contrary to their wishes. There are numerous "activist judges" with political and social agendas who run with the conservative posse. These are the judges who proudly display the Ten Commandments in the courtroom and let religious or cultural values flavor their decisions. Defendant living in sin? Well perhaps you will not be looked upon as favorably.
Frankly, I think most judges do the right thing though. Teri Shiavo? Mr. Judge says, "Sorry, doesn’t matter what my personal feelings are on this matter, and for the record, I don’t personally agree with the husband’s decision. But according to Florida law, upheld by other courts and passed by the Florida legislature, this woman’s fate has already been decided by her legal guardian." That’s it folks. There’s no activism there. I’m just a judge, he would say. I don’t enforce laws. I don’t make laws. But I make sure that when I take that brick and place in in the construction of history it fits and will stand the test of time. It has to fit with the other bricks. It has to hold up to the specifications written by the building’s designers. That’s a lot to do on its own. I’m not interested in activism. Leave that to the politicians. I’m a curator. I am the slow hand of time, sweeping deliberately ever forward. You can build on that. Do we have flaws? Sure we do. There where some gaping holes and errors in our decisions throughout the years, some of which took until 1963 to fix, but only because some judges, and I’m not naming names, Taney… ahem, couldn’t stop being activists, beholden to special interests.
Take this example. This is the opinion and decision of the Supreme Court of the United States in the Scott v. Sandford case.
The Supreme Court dismissed the suit on jurisdictional grounds. Chief Justice Taney
explained that the parties were not citizens of different states
because the Constitution did not consider blacks to be citizens. The
Chief Justice also added that the Missouri Compromise, which prohibited
slavery and involuntary servitude in certain parts of the Louisiana
Territory, violated the Fifth Amendment because it deprived slaveowners of their property without the due process of law.
Now that’s activism. The US Constitution never said blacks weren’t citizens. That fact is a convenient assumption based on the current values of the day. He goes further to decide that blacks are not only not citizens, but neither are they people. They are property, and as such the rights of property owners are protected by the Constitution. Yikes. That’s some activism sure enough, activism for slave owners.
Dr. Martin Luther King Jr. said, "The arc of the moral universe is long, but it bends toward justice." Eventually slavery as a legal practice with the sanctioning authority of the Judiciary of these United States was abolished.
Neither slavery nor involuntary servitude, except as
a punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction.
The only problem with the 13th Amendment was that it was not a court decision. Maybe if there had been fewer activist judges in the land during the 19th century, we wouldn’t have had to write this thing. Hello? All men are created equal? These are men. Are they equal? End of story.
But I digress. The judiciary should not be subject to the whims of current thinking. They must be of studied character, dispassionate, and moreover taken to, at any time and in any situation, question everything they have ever believed or known. All assumptions must be abolished and the building reconstructed piece by piece slowly and deliberately, like the slow moving hour hand.
Or I could be wrong. I dunno.