Our unaccountable judiciary

It has become commonplace in our day for people to raise the alarm about “threats to our democracy!” However, the very premise of the statement is skewed. The United States is not a democracy. It is a constitutional republic. A pure democracy would require everyone to be involved in the lawmaking process, the entire population would vote on everything and the majority would rule. (Never a good thing for those in the minority!) But in a constitutional republic the voters elect people to represent them in Congress and the Senate (or the legislature when we’re talking about a state like Nebraska that is organized the same way). The intention of our founders was that the nation would be governed by the “rule of law”—that is, it would be a government of laws not a government of flawed men whose opinions shift like the wind.

After our war of independence from Great Britain, America’s founders were done with being ruled by the whims of men like King George III.

In our state’s unique Unicameral legislature, there are only 49 senators, each of whom represents about 40,000 citizens. Nebraska adopted this one-house legislature in the 1930s to save costs in running state government. It worked.

The legislative cost was reduced by half. Like other states and the federal government, however, we do have three branches of government. Often it is said they are co-equal branches, but the founders meant for the branches to provide checks and balances of accountability to one another.

Since the legislative branch is closest to the voters because legislators come from among one’s own neighbors they are the most accountable. Therefore, the founders gave the most power to this branch.

The citizens have a duty to keep an eye on all branches of government, but since the legislative branch is the closest and most accessible to the voter, citizens should keep in close contact with their local senator. Call them, attend meetings where they are present and certainly write to them to express your thoughts and wishes on policy. They have an obligation to listen and respond to you and they should be able to communicate the reasons for how they vote. Meanwhile, the job of the executive branch is to administer the government and enforce the laws that are duly passed by the legislature, while the job of the judicial branch is to interpret the laws and administer justice to the citizens. The branch intended to have the least amount of power in both the state and federal governments, is the judicial branch.

While it does have the function of judicial review, ensuring that legislative law is in compliance with the Constitution, far too often the courts overrule the will of the people as expressed by the legislative branch. The judicial branch, through its rulings often, in effect, creates law. And although judges are supposed to be unbiased, they often act as black-robed oligarchs, legislating from the bench.

Over the past several decades the courts have blatantly run counter to the will of the people. Through such “judicial activism,” judges have removed prayer, the Bible and the Ten Commandments from our schools (Because, as the ruling stated, “some students might be influenced to follow them.”), struck down anti-abortion laws in 46 states and imposed samesex marriage on all the states.

The judiciary needs to be accountable to the other branches.

Those who serve their country swear an oath to protect and defend the Constitution, not unelected judges and their opinions. Especially since the judiciary is the weakest branch of government, we must realign our thinking away from the idea that courts have the final say regarding legislation. As George Washington said, “The fundamental principle of our Constitution requires that the will of the majority shall prevail.”

Laws can be broken down into three categories including Judicial Law (Specifies penalties applied to a crime and can change over time), Moral Law (Moral absolutes of right and wrong that come from God and do not change over time) and Social Compact Law (These are “consent of the governed” laws created by the legislature to guide our civic interactions).

It may surprise you to learn as early as 1869 the courts began chipping away at the concept of moral absolutes. That’s when the dean of the Harvard Law School advanced the idea that law is not based upon the transcendent standard of “Nature’s God,” as enshrined by the founders, but is rather a fluid and constantly mutating body of doctrine, a set of purely human ideas that inevitably change by slow degrees. In 1895 Courts of Justice were replaced by Courts of Law. Our nation’s legal system shifted away from a focus on the Constitution and began making decisions based on prior “case law.” This doctrine, known as stare decisis, means courts adhere to precedent in making decisions, rather than looking at whether they line up with the Constitution. Thus, judges became the sole interpreters of case law giving juries only what the judge allowed, making the judge the most powerful person in the courtroom.

The judges became unaccountable, the Constitution became almost irrelevant and justice was the casualty.

Our Constitution ensures what the Declaration of Independence called “inalienable rights.”

These are rights given to us by God and which cannot lawfully be taken away by our government or by others. Besides the rights of “life, liberty and the pursuit of happiness,” as mentioned in the Declaration, those rights include the rights of private property, self-defense (including the right to bear arms), freedom of worship, conscience and speech and the right to such things as a trial by jury, due process and others that pertain to the courts.

Today these freedoms are under attack and must be guarded against those who would usurp them. We must use the checks and balances built into our form of government to rein in rogue judges who legislate from the bench.

Our freedoms depend on it!

Loren Lippincott represents Legislative District 34 in the Nebraska State Senate. Read his column in the Nance County Journal.