(Note: This was written in July 2010, and is transcribed as was written then)
Yesterday I read an article on Supreme Court Justices using morality to determine the Constitutionality of cases (http://news.yahoo.com/s/csm/20090708/cm_csm/ylitton). The article goes on about how one side of the issue believes the Justices should use their own value of right and wrong to help determine cases, while others believe that the Justices should be umpires and not use personal morals. I believe the later.
First we must understand the role of each of the three branches of government, and the constitution itself.
What is the role of the highest court? When does morality come into our legal system? The answers for these two are separate and checked, spelled out in the Constitution itself. The role of the Supreme Court is to interpret law, powers delegated in Article III of the Constitution. Over the 200 plus years, this has morphed into the US Appellate Courts, Circuit Courts, and Finally the Supreme Court mainly to rule on whether a law is Constitutional, a precedent set by the the first Chief Justice of the United States John Jay (Marbury vs Madison). As I just said, "Supreme Court mainly to rule on whether a law is Constitutional", not moral. More on the Supreme Court in a minute.
So are we supposed to live in a society without morality? NO! How do we have our laws reflect the general moral view of the people of the United States? If the Court is not supposed to decide this, how do we make sure our laws follow our composite morality? The answer lies in Article I of the Constitution. Laws are passed by congress. The Congress where both the House of Representatives and Senate are chosen by the people. In order for a bill to become law, the same bill must pass both the House and the Senate, and be signed into law by the President, or the congress can override a veto with two-thirds majorities in both houses. These laws are where the Morality of us is put into the system. The process to make a law just that, a law is fairly simple, and is done very regularly, sometimes dozens of times a day. We the people elect these people to make our laws that reflect our moral nature, such as Murder is wrong, Child Abuse is bad, Stealing is unacceptable.
Murder, Child Abuse, and Stealing are all laws passed by US Legislature, and that of each of the 50 States. Because we as a people say "this is unacceptable behavior". The reason they had to be passed, is the Supreme Law of the land only describes one crime, Treason. The Constitution does not define laws, it defines the bounds of laws. It is this supreme law of the land where the Supreme Court comes back into play. Just as we have passed laws to reflect our morality, we have a Constitution to ensure those laws of morality abide by the framework we have set.
The Constitution sets hard rigid guidelines by which we govern ourselves. It delineates what power the Government does and does not have. What powers are the people alone, and not the Governments. These walls were meant to be strong, and not bend easily. If we do not like where the wall is, we have a process to change it, called an amendment. It takes two-thirds of each House in congress, and three-fourths of the states to adopt an amendment, not an easy process out of design, but not impossible if it is required to done. In fact since 1789 when the Constitution was ratified by the ninth state, putting it into effect, it has been amended only 27 times, 10 of those by 1791 (this is known as the Bill of Rights). These are hard boundaries we the people through a very thorough process have set.
So back to the Supreme Court. By the time a case gets to the Bench, morality has already been put in play by the people, through our legislative process. The job of the Court at this point is to determine does the sense of morality of the laws in concern stay inside the walls we have set up in the Constitution? It is not the job of a Justice to inject whether the laws passed by the people are morally correct, but do they stay in the box. The moral aspect has been addressed long before the Court sees a case. If a law does happen to be wrong morally but falls within the walls of the Constitution, we already have a process in place to fix that. The same body that passed it can also repeal it. If we believe the walls of the Constitution are not in the right place, we have a process to fix this as well, in Amendments to the Constitution.
It is not the job of the Supreme or even the Appellate or Circuit Courts to inject personal morality of right and wrong, but should simply determine if it fits within the boundaries set by the Constitution. Their are cases where emotion in the Courts decision has made determinations that most would agree with, but remember other decisions where "individual morality" came into play, and not the bounds of the law, Plessy vs. Ferguson, Separate but equal (violating the 14th Amendment of equal protection) overturned by Brown vs. The Board of Ed., The Missouri Compromise (violating the treaty among States clause) allowing slavery in some states, but not others. Of some cases where I personally believe an act to be reprehensible and wrong, I agree it is a protected right, Flag Burning, Nazi Protesting, and other acts of disrespect to the United States and its people.
These are part of the checks and balances we put into Constitution at that fateful convention in the hot summer of 1787. That Congress passes the laws, the President Enforces the laws, and the Court interprets the laws. This MUST be the standard of the Court, let the moral debate belong where it was intended, in the People's House, Senate, and State Houses, not the Federal Bench at the personal discretion of few or one individual not chosen by the people. The rule of law must be paramount, not rule of man, anything less than this is contrary to our Constitution, our founding ideals of limited government, and our Representative ideals. If the constitution can mean anything, then the constitution means nothing.
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