“No Bill of Attainder or ex post facto Law shall be passed.” I think we often miss the importance of that simple sentence in our constitution. Imagine what our legal system might be like without it. You could drive the speed limit and then be charged for breaking it because the limit was changed later. After all, if it is unsafe to drive 65 today, it must also have been unsafe last month when you did it. Or maybe you paid your taxes, but then the legislature retroactively raised tax rates. Too bad. Why should we care if you already spent the money you had left after paying the first time? You still owe the new taxes.
If laws could be retroactively changed in that manner we would not know how to act. Would anyone invest in a business and employ people if the government could tell him that he owes half his investment money in retroactive taxes? Would anyone build houses if the building code could be changed retroactively?
Those examples may seem a bit overblown, but we do have what amounts to ex post facto laws right now. The courts have developed a bad habit of changing the requirements and allowing law suits for actions considered perfectly acceptable when they were done. For example in the case of Ferebee v. Chevron Chemical Co., a farm worker died after misusing the herbicide Parquat. The chemical was labeled as mandated by the EPA. However the courts held that the labeling was inadequate even though Chevron had no choice in how it was worded. The court effectively said that what had been legal (and in fact government mandated) before Ferebee's death was now retroactively not allowed. Chevron was forced to pay a judgment for actions quite acceptable when they were done.
Another case involved a suspect who was given his Miranda warning and signed a “Consent to Speak” form. He confessed to robbing several stores but asked the officer not to write it down. After his conviction, the District of Columbia Circuit Court of Appeals sent the case back to the trial court, claiming that the suspect thought his unwritten confession would not count. They said that gave reason to doubt that he “intelligently and knowingly waived his constitutional right to remain silent.” That was a clear case of the court retroactively changing requirements; the officers involved had followed previous court direction to the letter. Though ultimately the conviction stood, Judge David Bazelon still dissented, claiming that the suspect should have been acquitted because he didn't have an “equal chance” with the smarter criminals.
How can police hope to follow the rules if those rules keep changing retroactively? How can a chemical company follow retroactively changed rules? This sort of thing causes serious confusion, adversely affecting both our economic and private lives. Criminals will be released to continue menacing the public and companies will fear to offer products we want at prices we are willing to pay. Jobs will be lost as those employers cut back on operations.
All such legal uncertainties are contrary to the rule of law, replacing it with the rule of judges, acting on their own ideas and whims. That is very close to a police state. It becomes a rule of the powerful, acting on what they prefer or believe instead of on settled rules.
In fact judge-made law is ex post facto by its very nature. Nobody can know ahead of time what the judge will decide. The decision comes not only after the action is performed, but months, sometimes years, after. Only after the case goes through the legal process will people know if their actions are going to be retroactively declared illegal.*
While legislation can be known before we break the law, we have no such advantage with judicial rulings. If your company released a new product last year and the judge decides today that it was illegal, you are held accountable just as though you had done it knowingly after the ruling.
It is said that ignorance of the law is no excuse. However in the case of those judicial rulings, the decision has not yet been made. There is no way to know if we are effectively breaking the law. That is an important reason that judges should restrict their actions to settled law, not seek to make new law. Even if the new ruling seems like a good idea, it is not up to judges to impose good ideas on the country. That is the prerogative of the legislative branch. Legislators, either state or national, can change the law in such a manner that people know what the law is and can thus obey it.
We need a rule of law, and that law has to be known to the people before it becomes effective. Judges as well as legislators should follow that rule.
*I am aware that in most cases those actions will not be considered criminal offenses so perhaps not technically “illegal.” However the effect is the same. There is punishment for previously acceptable actions, and uncertainty about how to live our lives and run our businesses.
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Showing posts with label foreign law. Show all posts
Showing posts with label foreign law. Show all posts
Tuesday, August 18, 2009
Monday, August 17, 2009
An Independent Judiciary?
We regularly hear about how important it is to have an independent judiciary. However that leaves out an important point: Independent of what? The idea behind judicial independence is that neither congress nor the president should control the judicial branch of our government. That is great, it is one of the checks and balances our founders built into the constitution. The judiciary should be free to judge according to the law and constitution. However judges should not be independent of that law and constitution.
Exhibit A for an independent judiciary is probably Franklin Roosevelt's 1937 attempt to stack the Supreme Court. That court had overturned some of his programs as unconstitutional, so he attempted to get congress to add more justices whom he would appoint. That failed, but Roosevelt was eventually able to appoint a majority of justices and get what he wanted anyway. He succeeded in removing the court's independence, at least temporarily. We are still living with the legacy of his court and the massive expansion of the federal government it allowed.
On the other hand, it sometimes appears that our judiciary is independent of the law and the constitution. That is not what was intended and it is dangerous to our freedom and to the rule of law. The constitution envisions not three separate governments but three branches of one government, each helping keep the others in check. When judges act with little regard for the constraints of law, they become a separate government – a government not accountable to the voters. That can allow them to take on aspects of a dictatorship.
A case from Clackamas County Oregon illustrates the point. In 2008 Russell Paul Hamblen was accused of rape, sodomy, and sexual abuse of minor girls. It looked like a good case for prosecutors, especially since his son and co-defendant had already pled guilty and been sentenced. Bail was set at $500,000. So far so good, that would likely keep a pedophile off the street – unless Judge Deanne Darling had her way. She ordered the state to post his bail! Her “reasoning” was that Hamblen should be free so he could help plan for the care of another son. There was nothing in the law or any precedent to support her order, she just made it up to suit her own belief.
Darling acted independently of other branches of government, but also independently of the law. Fortunately her order was overturned on appeal, but what if such an order were to come from the Supreme Court? There would be no appeal.
“But wait,” you say. “Surely no supreme court would ever act in that manner.” Are you sure about that? Consider the issue of homosexual marriage. In 2006 the New Jersey
Supreme Court ordered the legislature to pass a law allowing same-sex marriage or creating a similar institution for same-sex partners. So much for separation of powers, that court treated the legislature as a servant to be ordered around. Again the court was not only independent of the governor and legislator, but also of law and constitution. Other state supreme courts have likewise overruled constitutional law on this issue.
The U.S. Supreme Court? Surely that one is immune to such nonsense, is it not? No, it is not. Congress passed the Civil Rights Act of 1964 with the explicit promise that quotas would not be required. Yet today we have de facto quotas in many areas, mandated by the courts and approved by the Supreme Court. Though the court has backed off somewhat in its support of such quotas, they still effectively exist in many areas. Many businesses and state and local governments set out hiring and promotion “goals” for fear of being sued.
An even more frightening possibility is the desire of some justices to apply foreign law to the U.S. Though it has not yet become a majority view on the court, there are some justices who clearly want such law to be a factor here. They want to act independently of the constitution which clearly states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...” Nothing there about following the laws of European countries from whom we freed ourselves over 200 years ago. Yet Justices Kennedy, Ginsburg and Breyer seem to think they should look to foreign law for guidance. Justice Sotomayor, the newest justice, has in the past appeared to agree with that sentiment.
When judges look around for foreign law that supports their own prejudices, they are looking for a way to circumvent our own law and constitution. That places them in the position of dictators, ignoring the rule of law in this country. They thereby declare their independence from law and constitution. If Canada wants a law against criticizing homosexuals it may have such a law. If France wants a law against publishing anti-Islamic opinion, it may also have such a law. However those laws would pertain only to Canada and France, not to us.
This is an important reason why we must insist on judges who are committed to our constitutional form of government. They must have the integrity to put aside their own preferences and rule on the basis of our law and constitution. They must commit to independence from other branches of government but they must also commit to strict dependence on the law and the constitution. They are not independent rulers but are to be agents of the people according to the conditions set out in that law and constitution.
If you like my blog, please tell others.
If you don't like it, please tell me.
Exhibit A for an independent judiciary is probably Franklin Roosevelt's 1937 attempt to stack the Supreme Court. That court had overturned some of his programs as unconstitutional, so he attempted to get congress to add more justices whom he would appoint. That failed, but Roosevelt was eventually able to appoint a majority of justices and get what he wanted anyway. He succeeded in removing the court's independence, at least temporarily. We are still living with the legacy of his court and the massive expansion of the federal government it allowed.
On the other hand, it sometimes appears that our judiciary is independent of the law and the constitution. That is not what was intended and it is dangerous to our freedom and to the rule of law. The constitution envisions not three separate governments but three branches of one government, each helping keep the others in check. When judges act with little regard for the constraints of law, they become a separate government – a government not accountable to the voters. That can allow them to take on aspects of a dictatorship.
A case from Clackamas County Oregon illustrates the point. In 2008 Russell Paul Hamblen was accused of rape, sodomy, and sexual abuse of minor girls. It looked like a good case for prosecutors, especially since his son and co-defendant had already pled guilty and been sentenced. Bail was set at $500,000. So far so good, that would likely keep a pedophile off the street – unless Judge Deanne Darling had her way. She ordered the state to post his bail! Her “reasoning” was that Hamblen should be free so he could help plan for the care of another son. There was nothing in the law or any precedent to support her order, she just made it up to suit her own belief.
Darling acted independently of other branches of government, but also independently of the law. Fortunately her order was overturned on appeal, but what if such an order were to come from the Supreme Court? There would be no appeal.
“But wait,” you say. “Surely no supreme court would ever act in that manner.” Are you sure about that? Consider the issue of homosexual marriage. In 2006 the New Jersey
Supreme Court ordered the legislature to pass a law allowing same-sex marriage or creating a similar institution for same-sex partners. So much for separation of powers, that court treated the legislature as a servant to be ordered around. Again the court was not only independent of the governor and legislator, but also of law and constitution. Other state supreme courts have likewise overruled constitutional law on this issue.
The U.S. Supreme Court? Surely that one is immune to such nonsense, is it not? No, it is not. Congress passed the Civil Rights Act of 1964 with the explicit promise that quotas would not be required. Yet today we have de facto quotas in many areas, mandated by the courts and approved by the Supreme Court. Though the court has backed off somewhat in its support of such quotas, they still effectively exist in many areas. Many businesses and state and local governments set out hiring and promotion “goals” for fear of being sued.
An even more frightening possibility is the desire of some justices to apply foreign law to the U.S. Though it has not yet become a majority view on the court, there are some justices who clearly want such law to be a factor here. They want to act independently of the constitution which clearly states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...” Nothing there about following the laws of European countries from whom we freed ourselves over 200 years ago. Yet Justices Kennedy, Ginsburg and Breyer seem to think they should look to foreign law for guidance. Justice Sotomayor, the newest justice, has in the past appeared to agree with that sentiment.
When judges look around for foreign law that supports their own prejudices, they are looking for a way to circumvent our own law and constitution. That places them in the position of dictators, ignoring the rule of law in this country. They thereby declare their independence from law and constitution. If Canada wants a law against criticizing homosexuals it may have such a law. If France wants a law against publishing anti-Islamic opinion, it may also have such a law. However those laws would pertain only to Canada and France, not to us.
This is an important reason why we must insist on judges who are committed to our constitutional form of government. They must have the integrity to put aside their own preferences and rule on the basis of our law and constitution. They must commit to independence from other branches of government but they must also commit to strict dependence on the law and the constitution. They are not independent rulers but are to be agents of the people according to the conditions set out in that law and constitution.
If you like my blog, please tell others.
If you don't like it, please tell me.
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