May 19, 2008

California Supreme Court Shows the Results of Modern Judicial Philosophy

The recent decision by the California Supreme Court represents the incompatibility of our present judicial philosophy with our right to rule ourselves.

That court recently decided to ignore the clear will of voters who passed a proposition, with an overwhelming margin, in favor of a certain definition of marriage. Note carefully that this proposition did not advocate the persecution of any person or class of persons, nor did it advocate hatred. The proposition in question didn't even advocate name-calling. The proposition represented the end product of a political process in California, in which Californians determined how they would govern themselves.

When the California Supreme Court made a decision contrary to that law, they were politely but firmly informing the people of California that they no longer have the right to rule themselves and the right to create their own laws. The court declared that it had the power to determine how Californians ought to live and what rules they must follow.

Sadly, the judges were simply following to a logical conclusion a judicial philosophy common in many courtrooms today. According to this philosophy, there is no real way of knowing what is right and wrong. Laws and even constitutions are not reliable guides, according to this philosophy, becuase they may have been passed by bigots, or they may be tools of oppression for people in power, or at the least not as morally evolved as current standards of morality. There is no external standard to which a judge can appeal to in order to justify any decision. This may seem like a curious philosophy for a profession whose duty it is to uphold truth and justice, and reasonably explain how their decisions and actions restore justice to the community.

There is a way out, of course. Judges cannot be certain about external standards in modern judicial thought, but they can rely upon their own reasoning and moral impulses, and on the basis of these they can make moral decisions. As a result, judges who follow this modern judicial philosophy are free to enforce the dictates of their own moral ideas when they are called upon to judge cases. This philosophy is attractive because it gives a judge the ability to correct the immoral, or at least, shortsighted, decisions and laws of their community, and reorder society according to their advanced training in reasoning and ethics. If a judge serves long enough, they will get many cases in many different areas of society, which they can alter to accord with their own morality.

A more moral society is of course to be applauded, but modern judicial philosophy has serious problems which prevent it from achieving that. First of all, it is imposing one person or classes' idea of morality on another. The judge, simply because he or she is a judge, has the ability according to this philosophy, to force people to comply with his or her morality, or else face punishment. It is in effect legislating morality.

Everyone, of course, actually thinks that their own morality should be law, but this philosophy actually allows judges to make their morality law. That might not be so bad if a judges' morality were actually true and just. However, I would argue that human beings, having needed judges and laws for all of recorded history, probably will still have problems now and in the future in knowing just what is true and just, and actually doing it. Some of the most ancient documents known to us are codes of law. Not only have we not stopped writing codes of law, we have also not stopped stealing and murdering. We should not be so naive as to think that our judges are immune to moral corruption. We cannot and should not think that our judges, simply because they are judges, have the last word on what is true. We also should not assume that our judges, once given the power to rule our lives, will not abuse it.

The final problem is that modern judicial philosophy, by deciding that laws and constitutions created by the people are suspect, and determining that a judge is the only capable authority, runs counter to fundamental rights and freedoms of the American people. We have, since the beginning of this nation, had the right to make our own laws, and the freedom to live by them instead of our neighbor's opinion. When a judge gains the power to overturn laws, and in their place enforce his or her own moral opinion, we lose the right to make our own laws, and we lose our freedom to live according to law instead of a person's opinion.

The old judicial philosophy was that judges were to interpret the laws that their neighbors wrote, after their neighbors had consulted and debated with each other. Instead, modern judicial philosophy gives judges perimssion to rewrite the laws that their neighbors created, without having to consult with their neighbors, and in fact gives a judge power to imprison his or her neighbors should they disagree with the judge's opinion.

I think that the modern judicial philosophy is a mistake. I think that our judges had a tough enough time under the old system, trying to determine who was innocent and who was guilty, who was at fault and who was not, when mercy should be shown and when society needed justice. We should not burden them with writing our laws based solely on their own ideas, trying to resist the lures of power and of self-righteousness. The modern judicial philosophy has not brought us the justice we desire, and I argue that it cannot do so. What can a modern judicial system do? It can make a decision like that of the California Supreme Court.

The decision of the judges of the Supreme Court of California have shown us very clearly what a judiciary system will do according to modern judicial philsophy. No matter how great the margin was when a law was passed, no matter how clearly a law was written, and no matter how obviously a constitution does or does not address a topic, a judge who follows the modern judicial philosophy reserves the write to force society to comply with what the judge says is right.