Judicial Reason V Activism, Common v Civil Law

ObamaCare has been somewhat struck down, somewhat upheld, by various judges in the past few days – there’s much discussion everywhere about it. I think the law is an abomination, for many reasons, which are not the subject of this post. I hope it gets obliterated. I can’t get clearer.

Many on the Right – let’s use Todd Starnes, sage commentator of Fox News – opinionator of high order – lauded by many, quoted often, in the news – hell, he is the news-maker – let’s use him as our arbiter of two ideas: Judicial Reason and Judicial Activism. Which is related, believe it or not, to the differences between Common Law and Civil Law. Mr. Starnes is going to wax rhapsodic about how courts should strike down ObamaCare – indeed, he has. He wants judges to declare unconstitutional a duly enacted act of congress … and he’s just a stand in for most people on the Right, and quite a few on the Left it’s now surfacing as they realize this law screws them too.

If the Roberts court strikes down ObamaCare in whole or part, or any judge, this is “Judicial Reason” by the standards of the Right. Still, ObamaCare (ir)rationally affects 320,000,000 Americans – and is only somewhat emotional.

There’s another matter before the courts – one that rationally only affects only 5% of the people (despite frequent phone surveys that say 2%, but, still holds true if this small,) and yet emotionally affects 320,000,000 people – ooh, is it emotional – amazingly so. And if the courts strike down these laws, as they’ve been doing – then Mr. Starnes and cohorts and similarly situated – are up in arms over Judicial Activism. This would be marriage for gays, of course.

Well, you can’t be FOR “rational” judges overturning laws, and then be against judges overturning laws – either you think judges can overturn laws – any of them – or they can’t. It is inconsistent to say that for one set of cases declaring a law unconstitutional is good, wholesome, reasonable and the American way – and that when those same judges strike down another set of laws through such a declaration are now activist judges out of control – without being an utter mush ball. Mr. Starnes, he’s a mush ball on the subject. He does not think rationally about gay folks – he’s all emotion on the subject.

The reason, however, that judges can overturn and declare laws unconstitutional is our legal system – the Common Law – which comes from England, and is based on the 800 year old Magna Carta, and goes back even further than that, to Anglo-Saxon jurisprudence under Alfred the Great in the 890s AD – and perhaps before that too – it’s a long held tradition amongst the English for judges to be able to strike down laws as absurd and unconstitutional.

The other type of law in the world, which is the primary law of all Non-English speaking peoples, regardless of the name – the laws of Confucius and Hammurabi and Incan potentates are all “civil law” – Catholic Canon Law, Roman law, the Code of Justinian, the Napoleonic Code – all of it – the Civil Law – which is the unquestionable acts of the legislative body – and no judge can rule something unconstitutional. Judges apply the law, hand in hand with the prosecutor – which is why the rest of the world is screwed and wants to go to English speaking countries – where judges can tell legislative bodies “no, you can’t do that.”

Mr. Starnes, and ilk, which is not everyone on the “right” – and many in the American left to be sure – are for the Civil Law when it comes to gay folks, and the Common Law for everyone else. He’s for judges overturning laws when it suits him, and against it when his underpants are knotted. Liberals are like that too. They only like the judicial rulings they like, and otherwise the judges are horrendous critters wrecking the land.

For instance, in the recent Hobby Lobby case – Mr. Starnes was gleeful that the courts struck down provisions of ObamaCare – he was judicial activism! – while the Left was aghast at this “overreach of unelected judges” – why, they were all for Judicial Reason – and not Activism.

I suppose when a judge rules for you – he’s reasonable – when he rules against you – he’s activist. And so Starnes, emblematic of the Right, and many on the left, are both for and against judicial reasonableness and activism – they want their cake, and to eat it too – and to tell the baker what sort of cake to make for whom.

Well, it’s amusing to watch, that’s for sure. Let’s hope judges strike down even more laws – hell, the president and the legislative bodies, and bureaucracies, too, of this nation are hog-wild with decrees that make no sense – let us hope judges are active indeed.


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