Debunking the Doctrine of "Legislating from the Bench"

Over the past several years, I've read many articles about judges who "Legislate from the Bench." Anecdotally speaking, it appears that it's generally conservatives who strongly disagree with the judicial outcome of specific cases. For example, the Iowa Supreme Court recently ruled that prohibiting gay marriage was unconstitutional. As a result, homosexuals may now marry in the state of Iowa.

Today's post is really not designed to discuss whether or not gays should be allowed to marry. Indeed, I am merely using this case for illustrative purposes. The case was brought before the Supreme Court, and the judges unanimously agreed that prohibiting gay marriage was unconstitutional. Conservatives decried the decision as an attempt by Iowa's Supreme Court judges to legislate from the bench. My issue is not whether or not the decision was correct, but whether or not such a condition exists.

For starters, I should define "legislate." My non-legal definition of legislate is the making of laws. The legislative process, in America, always starts with congress. The idea for a law may come from anywhere... the executive branch, the legislative branch, or even the constituents of a given government. The actual process of making a law, however, always starts with congress.

The process itself is generally complicated and time-consuming. A legislator writes up the bill. The bill is then reviewed by the appropriate committee(s) in congress. Most proposed laws never get past this initial phase. Assuming that the recommended legislation (a bill) passes committee scrutiny, it then goes to the full congressional body for a vote. Each body -- the House of Representatives and the Senate -- must approve the bill. Furthermore, the bill must have the EXACT SAME WORDING before it goes to the next stage, which is that it is presented to the head of the executive branch for approval (the Mayor, Governor or President for the purpose of this article). The executive head has a period of time to approve or deny the legislation. If approved, the bill becomes law.

If the bill is not approved, congress can STILL force the bill into law. This is done by congress re-voting on the bill, but it has to be approved by a 2/3 majority. As you can imagine, this doesn't happen very often. The idea here is a balance of power. The legislative branch and Executive branch of government are supposed to be equally powerful.

The branches have different, but equally important functions in our government. The legislative branch proposes and writes laws... and to an extent makes the laws. The executive branch ratifies and enforces laws. The judicial branch interprets laws.

In order for the judicial branch to interpret the law, that law must be challenged through the judicial system. Going back to the gay marriage issue, someone has to say It's not fair that gays can't marry, and then file a lawsuit. The case goes before a judge who decides whether or not the law behind this claim is valid. Regardless of the outcome, the loser can appeal. Then, the appeals court chooses whether or not to hear the case again. (Most cases are appealed, and the appeals court declines to hear the case.) And even then, the loser of the appeal can appeal to the Supreme Court. The Supreme Court, like the appellate court, has the right to decline to hear a case. If at ANY point, the next higher court declines to hear a case, the lower court's ruling stands, and that's that.

By now, you should understand that VERY FEW cases get to the Supreme Court. And the Supreme Court is the ONLY body that has the authority to invalidate a law by calling it unconstitutional. The Supreme Court cannot draw up legislation. They cannot approve or enforce the legislation if it becomes law. The Supreme Court's purpose is to interpret laws, and their interpretation of the law is based on the constitution. Please note, that I said "based." The Constitution was designed as a framework of laws, written with the understanding that times and circumstances change.

The term "Legislating from the Bench" implies that judges are somehow writing laws from the courtroom... and a more subtle implication is that this judicial activism is destroying the country. The reality is that each branch of the government... the executive, the legislative, and the judiciary... have all taken their turn as the prominent branch of government. But in the end, NONE of them have been able to achieve and maintain a dominant position in government. Anyone who believes that these alleged activist judges are out of bounds should seriously brush up on their constitutional law, and their history. I would also like to point out that the ONLY time a judge is accused of legislating from the bench is when a long-standing law is overturned.

Crafty

Here's a shot of my latest craft...

There's a bit of a story to this. The charms you see on this necklace are crushed pennies, and it all started as a lark. I got my older daughter a "present" a couple of years back. Without going into the details, she wasn't wild about the original gift when she received it, but it inadvertently started a tradition. Over the last couple of years, every time we'd pass one of those penny crushing machines, I'd give the kid a penny and make another "charm."

After a while, the kid acquired quite the collection, and I decided to do something about it. My original idea was a charm bracelet, but I quickly realized that she had too many charms for a mere bracelet. Thus, the necklace you see here. The cool part is that we can add to the necklace as time passes and continue the tradition.

Evan's Christmas Memories

In response to Sunny's latest post, discussing times of Christmas Past, I've decided to share a couple of Christmas memories of my own. So, without further ado, here are a some of my fondest recollections...

One Christmas, somewhere between ten and fifteen years ago, my kids' mom and I were slumbering peacefully, when my older daughter came in and whispered "Dad, it's Christmas! Time to wake up and open presents." When I opened my eyes, I immediately noticed that it was still dark; once my eyes finally focused, I saw that it was about 4:30 AM. (I don't recall the exact time, I just remember that it was waaaaay early.)

Figuring that I'd be clever and stall for some more time, I said "Go back to your room and go to sleep. We'll open presents when your little sister wakes up."

"Okay daddy," she replied.

Pleased that I had dodged that bullet, I closed my eyes and starting drifting back to sleep, when I heard it... barely a whisper...

"Erin, wake up. It's Christmas. Daddy said that we could open presents when you get up."

I didn't get back to sleep that morning.

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Fast-forward a few years... The kids' mom and I had recently split up. It was the first Christmas since we parted ways, and I wanted to get the kids something that they'd remember. Unfortunately, I was on a budget. So I did a couple of things...

I went out and purchased about a dozen unfinished ceramic Christmas ornaments, and we spent a full night hanging out and painting the ornaments. They still adorn our tree every year. In fact, every year since then, I have purchased an ornament for each kid, and for Mrs. Evan. I've been doing this for enough years that we need a bigger tree.

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That same year, I also wanted to get each kid something "big." When I say "big," I really mean large, because everyone knows that children love to unwrap big boxes. Baby Evan didn't yet have a bicycle, so I scraped enough cash together to get her her first real bike. The older little Evan already had one, so that took a bit more creativity. I looked around and finally decided to get her a nice sleeping bag. She was at the age where she was doing sleep-overs, and I thought it would be something that she'd like for that very reason, and something that she'd use a lot.

I was half right... it was something that she did use a lot. Unfortunately, she was really pissed that her sister got a new bike, and all she got was a lousy sleeping bag. Big fail on dad's part!! In fact, every time she used it... and every Christmas since that fateful morning... she has gone to great pains to remind me that baby Evan must be the favorite, because she got a new bike for Christmas, and all the older Evanette got was a sleeping bag. Just to reiterate, Big fail on dad's part!!

Really Cool Gift!

I got the coolest Christmas gift from my friend Adam. The gift seems pretty self-explanatory, but I'm going to describe it anyway. It started out as a bottle of "Jarhead Chard" wine. The wine bottle was melted flat, and the labels were reapplied and epoxied. The result is a very creative cheese serving tray. A VERY appropriate gift, considering that Adam and I met in the Marine Corps.

@ Adam: Dude, you've got a panache for finding the perfect gift.

Forgive? Forget? Naaaah.

Back in August, when my Uncle died, I wrote this post. That article obviously discussed my Uncle's passing, but it also had another topic, and I'm going to back up a bit and rehash that today.

My uncle lived in the same town where I grew up as a kid, so when he was in hospice, I was also visiting my hometown. I considered calling a select few people, but I only made one call... to Lisa. As I said in the last post, she hung up on me when I called her. To clarify, I called, she answered, and when I said "Hi," she instantly hung up the phone, without a word. On the off chance that she had been disconnected, I called again and the line was busy. I figured that I'd wait for a bit, just in case we had both tried to call each other and both ended up with a busy signal. After another ten to fifteen minutes, I tried again. This time, I didn't even have a chance to say "hi." The phone was simply picked up and immediately hung up again. The message was loud and clear. She had nothing to say to me. With that, I have washed my hands of her.

For the most part, I have to admit that I felt relief. As I said in my last post on this topic, we had a falling out of sorts. At least this brought some definitive end to things. I don't need the last word, I don't need any additional closure or anything like that. I am willing to accept that we are no longer friends, and I don't lose any sleep over it.

Fast-forward to yesterday, when I went to the mailbox and discovered a Christmas card from her, addressed to the entire family. I could certainly understand if she'd have sent a card to my kids. She's known them both since infancy, and they love their Leesee. I am a little flummoxed, and slightly irritated by this one. I really don't like the idea of getting a Christmas card from someone who's at best pretending to be my friend. It certainly hasn't changed my decision to let the relationship remain dead. It would require too much time and effort on my part to try to forgive and forget.

Why Is Life so Difficult?

Despite the title, I am not writing today about some trial or tribulation of my own. In fact, for the record, I will say that I'm content with my life. Today, I'm answering a question that I seem to have heard several times in passing over the last few days. Maybe it's a bunch of people who just happen to be whining at the same time... maybe it's the Winter Blues... maybe they're all experiencing a bona fide big problem at the same time... Regardless of how they all got here, a lot of people seem to be asking "Why is Life so Difficult?"

Well, I have a couple of answers. (Hmmm... imagine that... me claiming to have the answers!) As I say this though, remember a couple of things. I am NOT here to give you chicken soup for your bruised little soul, and I am NOT Dr. Phil, giving you a couple of little feel-good catchphrases that you can take home and transform your life. With that said, let me tell you why I think life is difficult.

My first explanation is a little philosophical, but it's pretty simple. You need to experience the bad to appreciate the good. Let's go to pretend land for a little bit, and use food as an analogy. Let's say that through your entire life, you've eaten nothing other than your favorite foods... pizza, ice cream, chocolate... whatever your favorite foods may be. By most people's standards -- you know, the ones who've had to suffer through life with nothing but brussels sprouts -- your life has been pretty good. But since you've experienced nothing but pizza, ice cream and chocolate, all you know is two things... first, you don't like ice cream, and second, your life is rather dull. The only way to truly appreciate the good things in your life is through a little bit of suffering.

The second explanation is a little more straight-forward. Just as physical pain is the body's way of saying that something is wrong, emotional strain is how your mind says that something's not right. Sometimes you have to just cope. Losing a loved one, for the sake of illustration, is similar to breaking a bone. It hurts like hell in the short term, but with a minimal amount of care, you heal and life goes on. Chronic stress -- think depression, unhealthy relationships, things like that -- is the mind's way of saying that something has to change permanently. Poor posture and ergonomics can bring on back pain and carpal tunnel syndrome. The only way to fix it is to make a permanent change in your lifestyle. Similarly, you need to take care of your emotional well-being, or you will end up with, well, repetitive stress injuries.

Like I said, this is an over-simplification. But maybe it will give a few people a little food for thought.