Mimesis Law
15 August 2020

Rule of Law: We Used To Fight Revolutions Over This

Mar. 17, 2016 (Mimesis Law) — Some Kansas senators have grown annoyed by recent decisions of various judges and courts. One was in the case Kansas v. Carr, in which the Kansas Supreme Court twice overturned a death sentence imposed on a pair of spree killers. The first time, in 2004, the Court actually overturned the state’s entire death penalty law; only to be reversed by the U.S. Supreme Court. In 2014, they again overturned the Carrs’ death sentences because of issues relating to a joint trial and to jury instructions in the punishment phase, and were again overturned.

Another disfavored decision was in State v. Murdock, which involved the calculation of sentences based on prior offenses before and after Kansas’s adoption of a determinate sentencing scheme. The upshot of the case was that some inmates would be released earlier than they would have been had the decision gone the other way. Other cases to which the esteemed Senators gave the side-eye were non-criminal, such as a dispute over the ballot in the 2014 election for the U.S. Senate, and a school funding dispute.

Faced with the outrage of a court issuing rulings they disagreed with, the Governor and the Legislature tried to eliminate the Kansas Supreme Court’s ability to appoint the chief judges of the district courts, then threatened to eliminate funding for the court system if the law was overruled.

Essentially daring the Legislature to try to shut down the state court system, the Kansas Supreme Court ruled Wednesday that the lawmakers overstepped their authority by trying to strip the Supreme Court of its authority to select chief district judges across the state.

The ruling appears to trigger a “non-severability clause” that the Legislature wrote into law, designed to defund the court system if justices were to strike down the provision on selecting chief judges. The Legislature wanted chief judges chosen by election of the judges in each district.

In their opinion issued Wednesday, the justices said the possibility of court funding being cut off didn’t affect their decision, which was based on the constitutional principle of separation of powers between branches of government.

Senate then upped the ante and recently passed Senate Bill 439, in which they decided that an independent judiciary was unnecessary. The bill is a real piece of work. It says that:

[T]he grounds for such impeachment or for such discipline, suspension or removal for cause shall include, but not be limited to, any one or more of the following…

(f) failure to perform adequately the duties of office;
(g) attempting to subvert fundamental laws and introduce arbitrarypower;
(h) attempting to usurp the power of the legislative or executive branch of government;

Of course, the meaning of “adequate performance,” “subversion of fundamental laws,” “arbitrary power,” and “usurpation of the power of the legislative or executive branch” is left to the Legislature to determine. Running the text of the bill through my phone’s Bullshit Translator app[1], the Kansas Senate has just passed a bill that basically says, “We can impeach judges for making rulings that we disagree with.”

An independent judiciary is one the foundation stones of the rule of law. That’s the whole point of having different branches of government. I could go on about this, but it was covered by Alexander Hamilton in Federalist No. 78 (in prose, though, not in rap):

If it be said that the Legislative body are themselves the constitutional judges of their own powers… It is far more rational to suppose, that the Courts were designed to be an intermediate body between the People and the Legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the Courts. (Emphasis added)

That’s the foundation of the rule of law, and the one of the cornerstones of what so-called conservatives are so fond of pointing out: America is a republic, not a democracy. And, because of Article IV, Section 4 of the Constitution, so is Kansas.

The Kansas Legislature has gone from chipping away at the independence of the judiciary to attempting to blow it up with dynamite. This is the sort of thing that we used to fight revolutions over. In the list of grievances against the King in the Declaration of Independence, Jefferson included:

He has made Judges dependent on his Will alone, for the tenure of their offices,
and the amount and payment of their salaries.

So what happens if the bill goes through? That’s also been foretold:

Here is naught unproven—here is naught to learn.
It is written what shall fall if the King return.

He shall mark our goings, question whence we came,
Set his guards about us, as in Freedom’s name.

He shall take a tribute, toll of all our ware;
He shall change our gold for arms—arms we may not bear.

He shall break his judges if they cross his word;
He shall rule above the Law calling on the Lord.

King Brownback and his toadies in the Legislature are attempting to throw away a principle that dates back to the founding of the Republic, and even further, to the Magna Carta. Hopefully, someone has the guts to stop them.

[1] I made the app up, so don’t go Googling it.

4 Comments on this post.

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  • Chris
    17 March 2016 at 12:24 pm - Reply

    Good. I would like to see the US Congress do what Kansas is doing at the Federal level.

    “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so . . . and their power [is] the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.” – Thomas Jefferson

    I can’t say it any better. He would know. Who do these Judges think they are lately? You seem to have it wrong, we fought revolutions because we did not like decisions being made for us without any representation or say in the matter. Sounds more like un-elected life tenured Justices who think they are a super-legislative political veto council on divisive social issues. Issues that should obviously be left to the States and the People under the 10th Amendment.

    • Chris Broekhof
      17 March 2016 at 3:34 pm - Reply

      We have no representation or say in any of the recent matters? Thomas Jefferson was afraid of judicial tyranny, but he was afraid of an overbearing federalist system in general. But that’s what we’re stuck with, in part because of our forefathers failure to address slavery, or maybe just fate.

      But this is a state issue. So I don’t see how this is a boon at the state level to be applied at the federal level in a current situation where they pass laws only secret judicial branches can oversee. Indeed, I think he would find a friend in the court against the tyrannies of a federal government spying on it’s people. And I’m sure he would caution you to tie the courts to the will of the legislature any further then it already is.

      “The judges… should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness and attention; their minds should not be distracted with jarring interests; they should not be dependent upon any man or body of men. To these ends they should hold estates for life in their offices, or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.” –Thomas Jefferson to George Wythe, 1776. ME 4:259, Papers 1:410

      But he was a big fan of trying them to the constitution, or the people.

      “A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.” –Thomas Jefferson to Thomas Ritchie, 1820. ME 15:298

  • Jeff Gamso
    17 March 2016 at 2:11 pm - Reply

    It was Gerald Ford (when still in the House before Nixon made him VP and certainly before he became the Pres who issued Nixon a prospective pardon) who explained that:

    “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.”

    Formal legal standards of such things have never had more than normative significance – when they’ve had even that. It’s among the reasons that I regularly say that I don’t believe in the Law – the upper case version they teach in 5th grade civics classes and in law schools.

  • Eliot clingman
    22 March 2016 at 4:41 am - Reply

    The Anglo saxons were the first culture to experiment with constitutional government, starting around 1250 or so. Their American and English descendents are leading the gradual trashing of that tradition within the West. Cultures are like organisms: they mature, then they go senile. Cheers!