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Justin Darr
Mar. 24, 2005

After September 11th , my children came up to me afraid to go to school because they thought they might be attacked by terrorists and I had all the answers. I could explain how far away from anything important we live and how many times they were more likely to be struck by lightning than hurt by a terrorist, but they still want to play in the rain. I would then open the newspaper, or turn on the television and show them all the steps the government was taking to protect them, “See all those soldiers? Every one of them wants to protect you.” My words soothed them, but seeing action being taken by our elected officials on the news had a tangible impact on them that something was being done about a problem in a way my words never could.

However, now I am out of answers. My daughter came up to me and asked why the courts were killing Terri Schiavo. I tried to explain the issues as best I could but the only response I got was, “Well, I sure hope they don’t decide to kill me!” So do I.

The fact of the matter is I could not answer my daughter’s questions because I am suffering from the same dilemma as millions of other Americans. We have lost faith and confidence in our judiciary system to do what is right. Judicial activist judges have turned our legal system into a sick mockery of justice to the point where many people would rather keep quiet and accept whatever injustices are meted out on them rather than take their chances in a perverse game of “judicial roulette.” We are afraid of what is coming next, and feel that there we have no recourse to stop this undemocratic trend. But then my daughter looked at me and said, “Why doesn’t the President do something about it?”

I started to explain that situation to her when I stopped and realized that she was exactly right. The President should do something about the seeming never ending tide of judicial tyranny. In fact, the United States Constitution gives him the power, authority, and to be blunt, responsibility to do just that.

Alexander Hamilton addressed the issue of judicial activism and how it would be prevented under the new American Constitution in “Federalist Paper 81.”

Hamilton wrote,

“Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to… affect the order of the political system. This may be inferred with certainty… from [the judiciary’s] total incapacity to support its usurpations by force.”

Our government has a series of institutional checks and balances that keep any one of the three branches from superceding the others. The checks and balances between the Legislative and Executive Branches are well known. But what Hamilton is writing about is the lesser known check of the President over the Supreme Court as outlined in Articles II and III of the Constitution. The Supreme Court is dependent upon the Executive Branch, as is the Congress, to “execute” their wishes. Nothing gets done unless the President agrees.

The Supreme Court can decide whatever they want about anything and nothing is going to happen unless the President agrees to execute that decision. Political convention states that the rulings of the Supreme Court are executed by the President as a matter of course, however, there is no Constitutional requirement that this must be done. Political conventions also dictate that subpoenas to testify before Congress should have required that Terri have her feeding tube replaced until she could appear before the House Committee on Government Reform, but that did not stop some minor judge from tossing a Congressional subpoena aside without a word of explanation. So, in light of the Terri Schiavo case and many others, perhaps blind acquiescence to the will of the Court has gone on too long and led to crushing judicial arrogance.

America’s judiciary is running amuck because we allow it to do so. The Framers of the Constitution foresaw this possibility and built a system into our government to prevent it, and the time has now come for the President use it. It has been done before, in 1832 President Jackson refused to execute the Supreme Court ruling in the case of Worchester v. Georgia, and the Court responded by not issuing a similar ruling for the rest of Jackson’s term. The same thing would happen today. If the rulings of judicial activist judges where ignored by the Executive, then the problem of an activist judiciary would end immediately and Terri Schiavo would be getting the food and water to survive that is the right of every living being. True, there would be a political firestorm. But if the President takes his oath of office seriously, and truly intends to “protect and defend the Constitution”, then it is an action he must take.

© 2005 Justin Darr

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