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Friday, March 22 , 2019, 4:44 am | Fair 48º


Harris Sherline: Order in the Court

California's Proposition 8 is just one of many legislative actions giving judges greater decision-making control

It seems that hardly a day goes by that we don’t learn of some aspect of our laws that is determined by the court(s), as opposed to being established by the various legislatures around the country. Why is that?

Harris Sherline
Harris Sherline

Is it because we are not able to agree on anything? Or perhaps it’s because issues have become so complex that it’s necessary to have a third party, such as the courts, sort them out for us.

The latest issue to make headlines is a federal court decision that California’s Proposition 8, which defines marriage as being between one man and one woman, is unconstitutional — because it violates the constitutional rights of gay people. Judge Vaughn Walker noted, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. … Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

Apparently more than 50 percent of California’s voters thought so at the time Proposition 8 was passed in 2008, but the federal court has now stepped in to tell us they were wrong. The case is now on a path to the U.S. Supreme Court, which will make the final determination.

However, this is just one of many legislative actions that now find their way into the courts to be resolved.

The ink was hardly dry on President Barack Obama’s health-care bill before it was being challenged in the courts on a variety of grounds. The most recent is the state of Missouri, which is taking the position that Obamacare is unconstitutional because it requires American citizens to buy health insurance. The state claims this is an overly broad interpretation of the “Commerce Clause” in the U.S. Constitution.

Another issue that ultimately may be decided by the courts is the dispute over Arizona’s SB 1070, which the Obama administration claims is discriminatory. Many states have been lining up on both sides of the issue, and the Department of Justice has already entered the fray by filing an action in the federal courts.

It also looks as though the 14th Amendment to the U.S. Constitution, which is the basis of the so-called “anchor babies,” may soon be challenged in the federal courts. The issue is based on the fact that anyone who is born in the United States automatically becomes an American citizen.

Ann Coulter noted, “In fact, this alleged right derives only from a footnote slyly slipped into a Supreme Court opinion by Justice (William) Brennan in 1982. You might say it snuck in when no one was looking, and now we have to let it stay. … The 14th Amendment was added after the Civil War in order to overrule the Supreme Court’s Dred Scott decision, which had held that black slaves were not citizens of the United States. The precise purpose of the amendment was to stop sleazy Southern states from denying citizenship rights to newly freed slaves — many of whom had roots in this country longer than a lot of white people.”

Another issue we are seeing decided by the courts is the right of eminent domain. Government over-reach in taking such actions as exercising the right of eminent domain was exemplified by the Kelo case, in which the city took private property for the benefit of a private developer for the sole reason that a proposed project would generate significantly increased tax revenues for the city.

There are many more examples of the growing power of our courts, too numerous to detail in this short commentary, but the result of all the litigation over the meaning or intent of legislators and/or government officials is placing ever more of the decision-making in this country in the hands of the courts. 

Of the three branches of our government — executive, legislative and judicial — it would appear that the courts have been steadily assuming increased authority over much of the decision-making that our Constitution contemplated would be made by the other two branches. If this is allowed to continue, we may eventually find ourselves in the position of being “ruled” by the nation’s judges, most of whom are not elected and therefore are not accountable to the people. Since many judges are appointed for life, it’s impossible to remove them.

It would seem that many of the judges in our courts are now beginning to believe that they know what it best for the American people, but they are wrong. If we do not recognize this threat to our liberties, we may eventually find ourselves ruled by our courts. The fix is relatively easy, if our legislators are willing to do it. Congress has the authority to act and must do so before they completely surrender the power that is vested in them.

— Harris R. Sherline is a retired CPA and former chairman and CEO of Santa Ynez Valley Hospital who has lived in Santa Barbara County for more than 30 years. He stays active writing opinion columns and his blog, Opinionfest.com.

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