Monday, August 09, 2010

Judicial "Overreach" Since 1783

cross-posted at dagblog

The inevitable talking point about Perry v. Schwarzenegger, the case overturning Proposition 8, is that it's "judicial overreach." Reason snaps together the prefabricated argument here. For the last generation at least, the allegedly "conservative" position is that judges should not be allowed to "make law" or to defy the will of the voters by ensuring justice or allowing equal protection under the law. Apparently, the self-described "conservative" position is that the judicial branch does not have equal Constitutional authority with the other two branches, the plain text of the Constitution notwithstanding. Obviously these complaints aren't about genuine conservative principle. And for those who complain about the "tyranny" of lawfully appointed judges, guided by centuries of common law, I have one question:

How do people think slavery got outlawed in this country?

We all know how it got outlawed in the South, through the bloodshed and destruction of the Civil War. I'm not talking about that. I'm talking about how slavery was abolished in the North.

We never talk about that. It's easier to imagine that the Northern colonies were always slave-free, from the moment that the Pilgrims got to Plymouth Rock. That's a flattering story for Northerners, and dwelling on the unflattering details would only cast yet more unflattering light on the South, which didn't even manage the slow, grudging abolition that took place in the North. So we all conspire in tactful silence. But here are the facts:

In 1776, slavery was legal in all thirteen of the American colonies. Every one of them.

In 1787, during the Constitutional Convention, slavery was legal in twelve states. Twelve. Sure, slavery was unpopular in the Northern states. It was relatively rare. But it was still legal. Which state's voters had decided that "all men are created equal" actually meant what it said, and outlawed human bondage?

None of them. It wasn't the voters.

Slavery was abolished in Massachusetts by the court decision Commonwealth v Jennison, handed down in 1783. Judicial overreach, my friends. Judicial overreach by some judge in Massachusetts. What is this country coming to?

Should the judge have waited? Should the judge have waited for some referendum, or some vote by the state legislature? Would that have avoided "backlash?" If he had, then a man named Quock Walker, a living human being who had been attacked and brutally beaten with a cane, would have been handed over to his attacker as a slave. The judge had to choose between Walker's freedom and the voters' mood. No contest, I say.

If the courts had to wait for the voters to correct injustice and uphold basic equality, Quock Walker would never have been free. The voters were quite content to let just a few people be held in slavery (or what seemed like a few if you didn't happen to be one of them) rather than make a fuss. Should the courts weigh the public's aversion to controversy more heavily then an individual's rights? No contest, I say.

Let's be frank: when people claim about judicial overreach, they are complaining about courts protecting people's rights. Have you ever heard about "judicial overreach" limiting someone's freedom of speech, or depriving defendants of the right to a trial? No, the complaints come when other Americans get their rights. The people complaining about "judicial overreach" are angry that black schoolkids get to go to desegregated schools. They are angry that Americans can get a lawyer before they're forced to sign a criminal confession. They're angry that black Americans and white Americans can get married without asking the neighbors for permission.

At this point I'd like to quote that dangerous raving lefty, George Washington:

All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights.

Washington isn't worried that courts will overreach by protecting citizens' inherent natural rights even when the rest of the voters don't happen to be feeling tolerant or indulgent. He expects those natural rights to be protected, whether the majority feels like it or not.

When people get angry about judges overreaching, remember this: those people are angry that you have rights. They don't want you to have rights that are unconditionally or absolutely your own. They want your freedom of religion and speech and assembly, your freedom to marry and raise children and think your own thoughts, to be privileges that can be taken away from you, gifts from the neighbors that they can take back if they don't like how you use them. And of course rights that you can't use without permission aren't rights at all. The people who complain about meddling judges are complaining because they want the power to meddle with you. What they want is the power to nullify your rights, whichever rights they please, anytime they can get 50.1% of the neighbors to agree.

It's not judicial overreach but voter overreach that menaces our freedom. When a majority of voters, however large or however slender, decides that they can take away the rights of their fellow citizens with a vote, they are overreaching. When voters decide that their personal comfort or discomfort or their own traditional beliefs outweigh someone else's right to marry as they choose or be paid for their honest labor or worship the God in which they believe, those voters have overreached. My rights are mine, and yours are yours. They do not expire on election day, and I do not need your votes to renew them. When I decide to get married, there are going to be exactly two people who get a vote about that. And if you don't like who I choose, I have two words for you, neighbor: sue me.

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