Thursday, May 11, 2006

Ohio's Chief Justice Joins Those Who Seek an Imperial Court

First we had former (yea!) Supreme Court Justice Sandra Day O'Connor decrying congresses meager attempts at modest checks and balances as a "step towards a dictatorship." Then, current (unfortunately) Justice Ruth Bader Ginsburg tied Republican criticism of her extreme left-wing rulings with the occasional death threats that she gets from kooks.

Not wishing to be left out, Ohio's Chief Justice joins the "I am the law" chorus.

From the Dayton Daily News' excerpts of a speech given by Ohio Chief Justice Thomas Moyer on May 4, at the annual meeting of the Ohio State Bar Association:

In the past year, we have witnessed two phenomena that have converged to threaten the impartiality of American courts. The first is attacks from organizations and public officials on judges for their decisions in specific cases -- attacks that threaten retribution and urge changes in jurisdiction of courts.

The second phenomenon is the dramatic increase in the funding and politicization of judicial selection.

The Jeffersonian Democrats tried to remove judges from office. The Jacksonian Democrats looked with great suspicion on the courts and tried to limit their jurisdiction. Justices during the New Deal era were burned in effigy. And open defiance of decisions and calls for impeachment were commonplace during the social changes of the 1950s and '60s and the tenure of the Warren Court.

We can take some comfort in the fact that history reveals that citizens of our country have supported the justice system against ad hoc proposals that would interfere with the independence of American courts.

I do not believe that American courts are independent the way that I interpret him to mean. We are a nation of, by and for the people -- not lawyers and judges. The founders did not desire an imperial court, commissioned upon high to deliver edicts to peasants.

Alexander Hamilton was quite clear in Federalist 78:

The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both...

Justice Moyer continues:

Americans want their courts to be accountable only to the Constitution and the law. They are the only constituents of the courts. Americans want strong courts to protect individual rights and offer equal justice.

I remind the kind justice that the legislature is the people, their direct representatives. And, as we have learned from Mr. Hamilton -- it is in fact the people who have the final say here on Earth.

As for the keeper of truth, let heaven preserve her natural role -- as it was in the beginning.

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