Referendum Justice

Cox&Forkum did their editorial cartoon based on the following from Investor's Business Daily:

Law: This week's egregious Supreme Court ruling on executing minors underlines yet again how important it is that the right people are nominated to the bench.

We're not here to argue the wisdom or folly of the 5-4 decision that now prevents states from imposing the death penalty on murderers who committed their crimes when they were juveniles. What we object to is how the decision was reached.

Beneath the dust kicked up is the ugly fact that the ruling in Roper vs. Simmons wasn't based on the Constitution. Writing for the majority, Justice Anthony Kennedy cited not America's founding document and guiding law, but "national consensus" and "international opinion."

How is it that a majority of our Supreme Court justices, all with presumably first-rate intellects, can have such a fundamental misunderstanding of their duty?

That duty was made clear in Marbury vs. Madison more than 200 years ago, when Chief Justice John Marshall concluded that the court must rule on the constitutionality of legislated law.

In 2005, however, Kennedy, David Souter, Ruth Bader Ginsburg and John Paul Stevens use "national consensus" and "international opinion" to interpret what the Eighth Amendment means when it says "cruel and unusual punishments" are not to be inflicted.

Two years ago, Kennedy did much the same thing when he wrote the majority opinion in Lawrence vs.Texas. To buttress that ruling, which overturned state anti-sodomy laws, he cited the European Court of Human Rights and other foreign tribunals, an error that both insults and weakens our Constitution.

But this is no surprise. There's a faction in this country that views the Constitution as a "living" document that judges can interpret any way they want based on societal trends.

No wonder Kennedy cited "national consensus" in the decision. He yielded his judicial understanding of the Eighth Amendment to a national referendum. Except there is no national consensus on executing minors — even among states that have the death penalty.

Even if there were a consensus, it would be wrong to base constitutional rulings on it. If five justices detected a consensus that babies with birth defects should be euthanized, would the court OK with that?

Justices must decide what the framers meant by "cruel and unusual." Reading today's mood using the "evolving standards of decency" test cited by the Missouri court that initially ruled against executing juvenile offenders is like putting a finger to the wind. If they and the "living document" faction don't like what they read in the Constitution, they have to change it through the process provided.

(What could be so shocking, anyway, about what the framers believed about punishment? The Jeffersonian ideas that gave birth to the Declaration of Independence were influenced not by Neanderthals, but Enlightenment Age thinkers who also inspired our war for independence.)

The "living document" faction doesn't want to go through the constitutional process. It would rather have judges legislate from the bench. That's why it's so important for President Bush to nominate judges who aren't so tempted — and for the administration to go all out to win their approval.

This is a serious issue and one that really isn't getting much play in the MSM...

We CANNOT allow the Supreme Court to drift away from the Constitution of the U.S.

We CANNOT allow judges to legislate from the bench...

Our system was carefully crafted by the founders of this country so that one person or branch did not have excessive power...and we CANNOT...WE MUST NOT allow our system...our Rule of Law to drift away from those premises...

We must pay attention to every decision that is made in the courts...because if we don't...one day we will find ourselves with a completely different form of government than what we began with...and some of you will ask...'HOW DID THIS HAPPEN??'