July 27, 2005

My Two Cents

In a comment to this post at Daily Pundit I wrote:

The part of the Declaration of Independence that seems most apropos to me in this case is this:

... deriving their just powers from the consent of the governed ...

We do this by enacting and enforcing laws, rules, and regulations to govern those interactions that the people see fit through the election of their representatives. As part of that consent we have created and accepted a judiciary to act as the referee between contestants -- the defendant and the state for criminal purposes and between plaintiff(s) and defendant(s) in civil cases -- according to these laws, rules and regulations. If the referee suddenly decides to start rewriting the rule book for any reason whatsoever, no matter how good their intentions or how pure their hearts, then the link to the consent of the governed has been destroyed.

If as many have suggested, the law is an ass, well, we have well documented ways of addressing that problem within the framework of the consent of the governed. However, if the judiciary decides that the consent of the governed is overruled by their ability to discern the ass-ness of the law instead of the applicability of the law, well, the jig is up and we merely substitute a small number of robed oligarchs for our democracy. You think I'm kidding? Remember Florida in 2000?

Personally, this is just another argument for keeping government as small and unobtrusive as possible. Unintended consequences cannot be avoided just because someone cares. And I don't even want to get started on the more malicious and intentionally wicked aspects of government. But I digress.

The really funny thing to me is that people seem to keep forgetting that Judge Roberts came along well after the police made the little girl cry. Nothing he said or did was going to change the past, and by the time this case got to him the rules had already been changed because everyone involved had realized how stupid these rules were. If the little girl didn't cry but had instead coped an attitude and swore at the officers during her entire period of incarceration, would it have been ok then? Would we have ever heard about this case?

I'm far from believing that legal is equivalent to moral (thanks Mr. Clinton!), but the actions the police took when they took them were legitimate as they were enforcing the law of the land, without apparent prejudice or malice. Oh they may have acted with blind stupidity of the kind we see regularly with zero tolerance policies perhaps, but not with prejudice of malice. I believe that is all Judge Roberts said. To read anything else into his opinion is properly called projection, or worse.

I don't think Bill agrees with me though.

Posted by Charles Austin at July 27, 2005 05:22 PM

I followed the discussion at Bill's site and I agree with you. If the law is foolish, it should be fixed by the lawmakers and not the judges. Foolishness does not mean unconstitutional.
Why should the "people" not be able to control behavior in public accomadations? I view the law as the voice of the "people" not the preserve of some robed oligarchy.
Reasonableness is a very personnal construct. Judges, IMHO, have the responsibility to not substitute their personnal opinions into the reading of this phrase. My only exception would be a gross injustice in which case the "people" would probably demand a change in the law.
I have more faith in the "people" than does Bill.

Posted by: Carol at 11:33 PM

Bill may not agree with you but, as you probably guessed, I do. My impression is that Roberts is an Originalist. He may not be as "conservative" as some of the commenters on the other site may hope for, but he is an Originalist and confirmable, which is generally speaking a good thing.

After reading some of the comments on the other site, I'm reminded that once again it appears that some prefer that the perfect be the enemy of the good.

Posted by: Jon at 03:52 PM