Mimesis Law
27 February 2021

Legislators Want to Make Courts as Dumb as They Are

February 17, 2017 (Fault Lines) – Checks and balances are an important part of American government. If you end up with a crazy executive, you have Congress and the court system to watch your back. If Congress decides to go off the reservation, the executive branch and the courts can rein them back in. If the judiciary assumes too much power, the other two branches have ways of walking them back.

Of course, if any two branches or all three branches lose it, things are different. Then you probably need to think about bending over, putting your head between your legs, and kissing your ass goodbye.

But we aren’t there yet. Or maybe we are? The executive branch seems entirely unimpressed with “so-called judges” that won’t do its bidding. Now state legislators are piling on, too. At least in a few states.

In four states, the noble statesmen who make up the state legislative branch have decided to send a clear message to the judiciary: “Law don’t go around here…” It seems the courts are becoming “too activist,” which is code for “interfering with our ability to run roughshod over the citizenry.”

The common theme driving this legislation is a concern among lawmakers that state courts have become too activist. “There is nothing the legislature can do in any way to push back against the court,” said Florida state Rep. Julio Gonzalez (R), the author of a bill to allow the legislature to override Florida courts on issues of constitutionality. “That’s not a check and a balance. That’s not a dialogue. It’s a monologue from the judiciary to everybody else.”

If your head is still stuck up your butt, which is a likely scenario these days, you are probably thinking this is a damn good idea. Why should some judge get to tell you what to do? These activist courts need to be shut down so we can get back to the business of being great.

Just one problem. You really want to turn over that power to the activist legislature? And by activist, I mean, “full-time fundraisers masquerading as government officials.” Why don’t you take a look at how this would work before you get on board?

In a dramatic* proposal introduced in Arizona, the state won’t be honoring any federal court rulings that they don’t like.

HB 2097 of 2017 provides that “the sovereign authority” of Arizona allows the legislature to call a halt to any “commandeering” “action” by the federal government. “Action” includes “A ruling issued by a court of the United States.”

That might sound good to you. If the federal government tries to take your guns, the Arizona legislature can rescue you. And not to be too one-sided, if the federal government outlawed abortions, your friendly state legislature could ignore that rule, too.

See what just happened there? Two totally different federal laws, one for the righties and one for the lefties. Depending on the winds of politics, who knows which one the state legislature is going to honor. Which guy or gal did you vote for? Is he or she staying in office forever? Everybody loves giving the government power. Until the government turns on them.

Idaho wants to allow the state legislature to invalidate any federal court or United States Supreme Court opinion that is unconstitutional compared to the original intent of the Constitution.

This wouldn’t likely fly under the Supremacy Clause of the Constitution. If you are ignoring the Constitution in the first place, even under the guise of honoring it, who gives a damn about some “Supremacy Clause” anyway? But for the sake of argument, let’s say it did pass.

Who interprets the original intent of the United States Constitution? Your state representative isn’t going to be texting John Adams or Ben Franklin for advice. So the local business owner who got himself sent down to the state capital is going to tell us exactly what the Constitution means? Why don’t you browse through some of the laws your state legislature proposes, debates, and even passes on a regular basis, and let me know if that is the group you want dictating your constitutional rights.

Washington and Florida aren’t even pretending like there is just some objection to federal action. Those legislatures are just saying to hell with the courts in general.

If a Florida court says a legislative action isn’t constitutional, the Florida legislature wants the ability to say “oh yes it is,” with a two thirds vote. Washington isn’t even messing around with some supermajority. They just want to be able to reject court decisions if more than half the representatives want to.

Which means the legislature can effectively do what it wants. With the ability to rule on the constitutionality of its own acts, the fox would basically be in charge of the safety of the henhouse. Probably a bad idea. Unless you are a fox.

There is a reason our government is split into three branches. No one branch of government gets to run the show. You can scream and yell about President Trump, and he can scream and yell about the fake courts, but he is never going to be more than one-third of the American government. Maybe you don’t like court decisions**, but the courts are still only one-third of the picture. When Congress decides to pass some stupid law that might get some two-bit congressman from flyover country reelected, there is someone to at least make them stay within the bounds of the Constitution.

In case it’s not clear, the idea that legislatures should have any influence over the court system is really, really stupid. And your legislators attempting to exert that control over the courts are stupid, too. And you voted them in, so take a wild guess where that leaves you?

* By dramatic I mean stupid and hysterical.

** More likely, you don’t understand them.

2 Comments on this post.

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  • Wil
    17 February 2017 at 9:24 am - Reply

    Sounds like a push to repeal the 17th amendment and return some representation at the federal level to the individual state governments might gain some traction.

  • bacchys
    17 February 2017 at 11:29 pm - Reply

    Generally speaking, the folks pushing these modern Kentucky and Virginia Resolutions are also among those howling for the Feds (read: Trump) to crack down on those rebellious “sanctuary cities.”