America’s Reign Of Judges Has Left Us With An Unrecognizable Constitution By Michael Anton for The Federalist
Judges who can find no support in law for the outcome they want resort to their own personal sense of morality to achieve their desired result.
This is an excerpt of “The Stakes: America at the Point of No Return,” out from Regnery this week.
“Kritarchy” is a Greek neologism that means “rule of judges.” Strictly speaking, we don’t live under a regime in which judges rule alone.
It’s more precise to say that modern American judges are a vital node of the neoliberal oligarchy who exercise far more power than they ought to have, in ways the founders never intended.
According to the parchment, judges are supposed to rule on individual cases and — in extraordinary circumstances — may invalidate laws that clearly flout the plain text and meaning of the Constitution. This is not what our judges actually do. They profess themselves loyal to the Constitution, in part as a diversionary tactic but also in part out of genuine sincerity. The problem with their sincerity is that their loyalty is not to the actual Constitution but to a rival constitution of the left’s own devising. That constitution is not written in the same manner as the formal Constitution, but neither is it completely unwritten. Its tenets are explained in various books and journal articles, in certain laws, and in administrative rules.
But mostly they are memorialized in judicial rulings that purport to interpret the de jure Constitution but which really outline the parameters of today’s true, de facto constitution. I was unable to identify who coined the term “legislating from the bench,” but it’s an apt description of what modern judges do. Under the guise of “interpreting” the law, judges very often make the law, inventing new “rights” as they go.
Alan Dershowitz — lately a hero of President Trump’s impeachment show trial, but at heart a lifelong extra-constitutional judicial liberal — writes of his experience clerking for David Bazelon, long-serving chief judge of the U.S. Court of Appeals for the District of Columbia, which is widely regarded as the country’s second most powerful tribunal:
If a defendant deserved compassion but no writ of habeas corpus — or other formal legal remedy — was technically available to him, Bazelon would wink at me and order that I find some ground for issuing a “writ of rachmones.” Rachmones is the Hebrew-Yiddish word for “compassion.”
