June 29, 2002

Thomas Sowell goes to the

Thomas Sowell goes to the heart of the Pledge decision. For too long the courts have moved beyond their role of law interpreters and into forming public policy. Sowell writes,

One of the reasons courts at all levels get away with imposing judges' personal views as the law of the land is that so much of the public and the media view each decision in terms of whether they agree with the particular policy it represents. But the destruction of the separation of powers, which is central to the Constitution, is infinitely more important than whether policy A is better or worse than policy B.

Letting judges change the law by verbal sleight of hand is especially dangerous in a country where the people are supposed to have the power to control the laws they live under via their elected representatives.

Those who question whether the government ought to be in the business of promoting any religious concepts among school children can raise that as an issue that we can fight out among ourselves. It is denying us the right to fight it out among ourselves by judicial fiat that is the real danger.

Last week, the Supreme Court ruled that states couldn't execute the retarded. Some how a majority of justices read the ban against "cruel and unusual punishment" to mean a particular public policy. In that case, if the murderer had an IQ below a certain level he was immune from execution. In both these cases there wasn't an interpretation of the law. There were no claims of original intent. Instead, the judges imposed their opinions onto the public. That is not the role of the courts. Judges are not in place to shape society as they see fit. They are not on the bench to force their views of society should be down everyone else's throats. They are on the bench to interpret the law, not make it up.

Such undemocratic judicial activism robs power from the other two branches of government. The public can hold the executive and the legislative branches accountable more easily. Voting a bum out happens more often than impeaching a judge (speaking only on the federal level since those judges have appointments for life). So, what judicial activism actually does is rob the People of their sovereignty. So be it to have utopian social justice here on earth.

"Religion and the Constitution"