THE WASHINGTON TIMESPublished December 17, 2006
From time to time, the Supreme Court of the United States makes a decision that causes anger or outrage, but that reaction usually passes with time, especially since there is nothing the public can do about it -- either to change the decision or to remove from the bench those who made it.
This has emboldened many federal judges at all levels to take advantage of their lifetime appointments to make rulings that impose their own personal views and call it law. Some have even added insult to injury by rationalizing such judicial activism.
In a recent interview, Justice Stephen Breyer claimed laws are "not clear," so judges are forced to base their decisions on the "values" they see behind the laws, rather than the specific words in those laws. "Not clear" is an old ploy, and "values" are a blank check.
Most of the controversial Supreme Court decisions that have outraged and polarized the country have not involved laws or facts that were "not clear." Everybody knows what an abortion is and what the death penalty is.
Everybody knows the difference between government's power to seize private property for "public use," like building a reservoir or a bridge, and allowing politicians to grab people's homes willy-nilly, in order to turn the property over to some other private parties, such as owners of casinos, hotels or shopping malls.
"Not clear"? Even the most crystal-clear law in the world can be twisted by clever lawyers and clever judges to seem unclear, if that is all it takes to give them the power to impose their own notions as the law of the land.
To people who want to see judges impose their own views instead of applying the laws as written, "not clear" is a magic phrase like "open sesame," opening the floodgates to unbridled judicial power.
The people who use this foolish argument are not fools themselves, though they may well regard the rest of us as fools enough to buy some pretty words, at the cost of losing the right of free people to govern themselves through the democratic process. Very often both headstrong judges and their media and academic supporters act as if these elites have both the right and the duty to impose their superior wisdom and virtue on the rest of us.
Many are unduly impressed by their superiority to others within some narrow band out of the vast spectrum of human concerns. From the fact they know so much more than the average person, at least within that narrow band, they assume they have more knowledge than all the millions of average people together, across the whole spectrum of concerns involved in decisions. That is the grand fallacy of social engineering in general.
No doubt the central planners in the days of the Soviet Union knew more economics than the average Soviet citizen. But nobody knows enough to set the 24 million prices that central planners had to set.
Yet hundreds of millions of ordinary citizens could have dealt with 24 million prices much more effectively because each individual or enterprise had only to deal with a relatively few prices in their own decisionmaking. In this, as in so many other societies, the total knowledge of the many vastly exceeded the special knowledge of the few.
That is what makes limiting the powers of the government so important -- because it is virtually impossible to limit the presumptions of government officials, whether legislative, executive or judicial.
In the United States, those limits are set by the Constitution. Yet those limits have been repeatedly and increasingly exceeded by activist judges claiming the laws are "not clear."
It is shameless sophistry. But they won't stop until they get stopped. And the only way to stop them is to start impeaching those judges who go counter to the law.
There will be outcries about a threat to an "independent judiciary." But the judiciary is not supposed to be independent of the laws, which is the dangerous situation today.
Thomas Sowell is a nationally syndicated columnist.
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