The blog where I rant about things that should be obvious to everyone

Wednesday, November 9, 2011

The problem with judges

Throughout human history in as far is it applies to the western world through Judaism and Christianity, the men who have been give the role of interpenetrating text have always had a common problem. They cannot help but insert themselves or their beliefs into the interpretation. This started with the Torah. At the end of the Torah in the book of Deuteronomy in chapter 4 and again in chapter 12 it explicitly says not to add anything or to remove anything from the law.

Ye shall not add unto the word which I command you, neither shall ye diminish ought from it, that ye may keep the commandments of the LORD your God which I command you.”

What thing soever I command you, observe to do it: thou shalt not add thereto, nor diminish from it.”

But despite this, by the time Jesus was born, there was a massive code of oral laws that the Jews kept, and even held above the original written law. So the rabbis not only disobeyed the direct commandment not to add anything to the law that was received by Moses directly from God, but they held what they added in higher esteem than they did the Torah. Jesus with his ministry and death wiped away all of these oral traditions (for those that accepted Christianity anyway). The slate was clean, and there was even a new admonishment against adding to the word of God found at the end of the book of Revelation:  

"For I testify unto every man that heareth the words of the prophecy of this book, If any man shall add unto these things, God shall add unto him the plagues that are written in this book:
And if any man shall take away from the words of the book of this prophecy, God shall take away his part out of the book of life, and out of the holy city, and from the things which are written in this book."

Granted those verses were written in the context of a single book, and therefore can only reasonably be applied to the book of Revelations, but it still serves as a reminder that we are not to add to the word of God, no matter how good we think we are at interpreting His word.

Unfortunately the clean slate did not last long. The Catholic church did the same thing adding many doctrines that were considered divine interpretations that held (and hold) the same weight as the word of God. And from that you get some truly nutty ideas that simply are not in the Bible, such as the idea that Mary was born without a sin nature. I admit that I don't know the whole history of how the doctrine of the Immaculate Conception came about, but I have read all of the Gospels many times, and it ain't there.

Because of these interpretations the church has split many times, making the East Orthodox church, and the Protestant denominations.

The reason that I bring this up when talking about judges in America today is because they do the same thing. They have set themselves up as priests with divine right to interpret the law, and their interpretations are considered to be on the same level as the law.

And we get the same sorts of problems, such as the decision of Roe v. Wade. For example, this is taken from the actual text of the decision.

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” 

So there is no right to privacy and they know that there is no right to privacy in the law that they have been tasked with interpreting, but because other judges put it in there they will decide to act like it is there. Then you get this little dozy. 
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
They actually take a right that they previously admit is not even in the law that they are interpreting, and then say that it is “broad enough” to cover whatever it is that they want to do. The rest of the decision comes straight from fantasy land with such excerpts as: “Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.” Translation: “There is a right to privacy. It comes from somewhere, we don't actually  where. But what we do somehow know is that this right is not absolute. Blah blah blah states rights blah blah blah I dead babies.”
And now this decision, which is complete madness, is precedent for new decisions.

The point is that Judges are going to interpret the law poorly. They just are. It seems to be one of the conditions of being human. But by knowing this you can recognize good law and bad law. Good law is exclusively taken straight from laws written by legislators, only appealing to legal president in cases where there is ambiguity in the language of what the legislators wrote.

The other take away is that judges, along with priests and rabbis should not be treated like divine avatars of the holy ones who can do no wrong when inserting themselves between the people and the law. They are humans, and unless they are remarkably different that other humans that have come before them, they are quit bad at their jobs. Mostly in the past when the slat gets so so very dirty, it is only going to be wiped clean through revolution and blood. It would be nice if in America we could figure out a way of doing this by simply removing precedent, and tossing out judges regularly on the basis of being extraordinarily bad at their jobs.

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