This Sunday my daughter graduated from American University, Washington College Of Law. It was a proud moment in my life. The ceremony took place on the campus of the University (the law school is in a separate facility off site). The commencement speaker was Supreme Court Justice Steven Breyer. After the usual run of speakers saying the usual things badly Breyer's speech was exciting and amazing. He was erudite and spoke with passion and eloquence. His speech was a tribute to the notion that the law was a higher calling and he urged the graduates not to fall into a mundane, everyday employment but to use their profession to pursue that higher calling. But the happy and elevated tone carried a sinister undertone, one which defined a fundamental changing of the governing system of our nation and the creation of a mandarin class which arrogates more and more power to itself and answers to no democratic restraints while still retaining an outward obedience to the democratic rules laid down by the Constitution and the statutes. Breyer in fact couched his remarks in the context of reverence for legality. He began by speaking of the case brought by the Cherokees against the order issued by Andrew Jackson in which he decreed that all Indians still in tribal societies should be expelled West of the Mississippi River. When the Cherokees contested this and won their case in the Supreme Court Jackson was quoted as saying, "Now let them enforce it." He then ordered the army to expel the Cherokees from their lands and marched them along 'The Trail Of Tears' to a reservation in Oklahoma from which they emerged a couple of decades later to support the Confederacy against the hated US government. Breyer then contrasted Jackson's actions with those of Dwight Eisenhower who sent troops to enforce a court order desegregating the public schools in Little Rock Arkansas. Breyer pointed to a racist and cruel illegality evolving to a humane and admirable respect for the law, a nation changing and growing under the wise tutelage of The Court and The Law.
But was Jackson's cruel act of ethnic cleansing illegal, and did the court have the authority to reverse his decision? Remember, Jackson had, only a few years previously, at the head of an ad hoc militia he raised personally, defeated the Creeks and seized all their lands and invaded Florida, which was in the possession of the Spaniards to fight a war against the Seminoles. He had no orders or authority to do that. Both Spain and Washington were forced to recognize his actions as legal because they had no alternative. This was a lawless frontier far from the learned legal theorists in Washington. Was Jackson more restrained by the law as President than he was as a local militia commander? Furthermore, Jackson was an elected leader making national policy and the court is not superior to the executive in the Constitution, it is co-equal. If the court's order to Jackson was legal and Jackson therefore a criminal wasnt Tyler's annexation of Texas and Polk's seizure of the vast, uninhabited Southwest from the anarchic and newly-formed nation of Mexico equally illegal? Is the executive bound completely by subservience to the courts? Can events occur outside the purview of the Courts? Would our country exist if they cant?
Another case, which Breyer conveniently didnt mention, was the Dred Scott decision. This travesty of a ruling not only enjoined elected governments in free states to seize and return runaway slaves against the wishes of the people who elected them ("A negro has no rights a white man is bound to respect" said Chief Justice Taney's opinion) it also overturned the Missouri Compromise, arrived at by a legally elected legislature to prevent Southern secession and civil war and set the stage for the expansion of slavery into the western territories.
Other forays by the Court are equally unedifying. FDRs administrative decision to imprison US citizens of Japanese ancestry accompanied by the confiscation of their property in 1942 was given the court's seal of approval as was segregation; Plessy vs Ferguson was in clear violation of the 14th Amendment.
But the growth in the power of the judiciary exploded after Breyer's example of the triumph of law in Little Rock. The same president that Breyer held up as an example of this evolving legality appointed as Chief Justice the former Governor of California, Earl Warren. The Warren Court took the court in a new direction, one clearly not envisioned in the Constitution but one foreseen by Thomas Jefferson in his warnings against the inherent evil of Marbury vs Madison. The courts began to make law. In fact Breyer in his speech enjoined these fresh graduates to become active in their local Bar Associations, "...because that's where laws are made." The last half-century since the Warren Court have been a study in the passage of law and governance from democratically elected officials to the courts and to a permanent bureaucracy which answers to no one. Tropes such as 'fairness' and 'the overall public good' have become vehicles to advance the power of unelected officials and any hustler savvy enough to navigate the Byzantine maze of regulations and rulings which are so complex that they lend themselves to any self-serving interpretation.
The new legal anarchy has also played into the hands of people who understand how impervious to common sense judges like Breyer have become. A seventeen year old invaded a suburban home, raped, tortured and hog-tied the woman he found inside, put a pillow case over her head, drove her to a bridge and threw her off into the river. He laughed in jail and told his fellow inmates that his tender age would protect him from the death penalty. In Roper vs Simmons Justice Breyer and four of his fellows proved Mr. Simmons correct. Anthony Kennedy wrote the prevailing opinion which quoted the law from other countries and spoke of evolving 'International Standards Of Humanity', saving the promising legal prodigy Simmons to pursue a legal career and possible judgeship. In fact, opposition to capital punishment is dear to the hearts of all liberals as is state-provided abortion, gay marriage, disarming the citizenry, conferring welfare benefits on illegal aliens, enforced racial quotas and, in the Kelo decision, seizing private property under eminent domain and reselling it to greedy developers to increase tax revenues. What Breyer worships as respect for the law is pure class warfare; the unpopular social engineering schemes of the elite go to the courts to be enacted into law so that the ignorant Rednecks cant terrify timid legislators into blocking social 'progress' by withholding their votes.
They say there's an election going on at the moment. It wont matter much who wins. The same elite, educated in these fine schools, will decide whats going to happen. We dont have a 'Living Constitution' as the liberals describe it, we have a 'Dead Constitution'. Liberals have abandoned legality. Watch. Officials of the Bush Administration, out of power, will be charged with trumped up 'war crimes' as the savage inmates of Club Gitmo are turned loose on the helpless inhabitants of the Middle East; one of these paragons who was just released blew himself up in an Iraqi marketplace the other day, killing a dozen or so people and wounding dozens of others, fortunately none were members of the ACLU or the local Bar Association. The good work the Clinton Administration pioneered in using the IRS to harass their political enemies will be expanded as the age of liberal legality descends and the dim light of freedom is extinguished.