Category Archives: Constitution

THIS is Why Judges Shouldn’t be Elected

Several months ago, the Indiana Supreme Court had to decide a case involving homeowners who shot at police who were entering their home. It turned out that the entry was in error and the homeowners were acting in what they said was self-defense; nevertheless, the Court ruled that the use of weapons to repel the police entry was improper. [SEE BELOW FOR CORRECTED DESCRIPTION OF WHAT HAPPENED.]

You probably remember the ensuing uproar. Gun rights and “your home is your castle” purists were outraged, the legislature waded in with legislation to overturn the ruling, and a gnashing of teeth was heard throughout the land.

Now, opinionated snark that I am, I really didn’t have, as they say, a dog in that fight. I could see the logic of the reasoning that generated the opinion, and I could also understand the blowback. But here’s the thing. Judge David, who authored the decision, is up for retention this election, and the Tea Partiers are out for his blood.

There’s a reason the Founding Fathers made federal judgeships appointive rather than elective. The idea was that legislators and members of the Executive branch would have reason to respond to public sentiment–to what the Founders called “the passions of the majority.” The checks and balances of the government they were constructing needed a mechanism focused upon the rule of law–judges whose duty was to the Constitution, not the electorate. Shielding judges from electoral pressures was meant to insure that they would decide cases based upon their reading of the applicable law, rather than the electoral consequences of any particular decision.

The decision to insulate the judiciary was certainly not a guarantee that every decision would be correct. That wasn’t the point. The idea was that–freed of the need to pander to popular opinion–judges would produce decisions that were intellectually honest, that reflected their best reading of the case and the law. The judicial branch would thus act as a check on the majoritarianism of the other two branches.

When the states established their own courts, however, they didn’t always follow the federal model.

When judges are on the ballot, bad things happen. They have to raise money to run for office, and that money often comes from people who have business before the courts. (In West Virginia, a judge who had received $3 million dollars from the owner of a coal mine refused to recuse himself in a case against that owner–only when the Supreme Court stepped in did he step down.) They have to be wary of interest groups that may mobilize to defeat them if they rule in ways inimical to the desires of those groups. (In Iowa, right-wing Christian organizations were able to defeat two state Supreme Court Justices who had ruled that the Iowa Constitution required recognition of same-sex marriage.)

Even in “semi” elections like Indiana’s, where all that appears on the ballot is a retention question, asking voters to say yea or nay to the continued service of a judge makes members of the judiciary vulnerable to small but passionate interest groups like the Tea Party that’s gunning for Judge David. (No pun intended.)

Most voters have no idea what the judges have or haven’t done, whether they are competent or not, whether they are hard-working or lazy. A significant number don’t even vote on retention questions. Because that’s the case, small numbers of zealots can mount successful campaigns to defeat a judge they dislike. Once that happens in a state, even a couple of times, the result can be a judiciary too timid to rule against public opinion in controversial cases, no matter what justice and the law require.

That isn’t the system the Founders established, and it isn’t a system capable of upholding the rule of law against the passions of the mob.

NOTE: Here is Jerry Torr’s message.

“While I don’t always agree with your opinions, I do appreciate that you usually have your facts straight.  Thus I was surpised to read the opening paragraph of your blog today and your description of the case that has caused the uproar over my friend Justice David.
In the Barnes case, there were no shots fired at police – in fact there were not even any weapons involved.  Further, few actually argue that the police entry under the particular facts was in error.  The police were responding to a 9-1-1 call from Barnes’ wife, and when they arrived he was outside the apartment.  After some discussion (argument) with the responding officer, Barnes then entered the apartment and tried to close the door on the officer who was attempting to follow him in.  When the officer forced his way in, Barnes shoved him against the wall.  He was subsequently charged with battery on a police officer (as well he should have been under the circumstances).
As you know I am not a lawyer; however, it seems clear to me that the Court could easily have found that the entry was proper due to the exigent circumstances of the 9-1-1 call, and no one I know disagrees that the result was correct for the particular facts of the case.  The problem is that the majority went out of its way to go much further than it needed to in order to decide this particular case, and bascially threw out the Fourth Amendment in the process by saying that reasonable force is NEVER appropriate, under any circumstance, to prevent an illegal entry by a police officer (perhaps even if he is trying to force his way in to my home to harm or kill me because he mistakenly believes I’m having an affair with his wife).  The ruling basically turned the Fourth Amendment on its head and created a serious conflict between the Court’s ruling and the Castle Doctrine statute that we had passed just a few years earlier.  That’s why legislators felt we had to respond with statutory changes.
Again, I take no issue with your argument about appointed judges, but I was really surprised to read your description of the Barnes case in the first paragraph.  Hope you will take this in the constructive manner that it’s intended.”
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True, But…..

Over at Masson’s blog, Doug addresses the misunderstandings that underlie the outsized reactions of Islamic fundamentalists to “provocations” like the amateurish film (or trailer–no one is yet certain an actual film was ever made) that set off the latest round of murderous rage:

Part of the problem seems to be, culturally, a lack of understanding and appreciation for our First Amendment. The Middle East is full of places where government can and does suppress speech it deems troublesome. When the U.S. doesn’t suppress something here, it probably looks to them like an endorsement on some level. In addition, our exposure to so much garbage because of the First Amendment gives us a sort of strengthened immune system we take for granted.

True on both counts.

But folks in the Middle East aren’t the only people who confuse a failure to censor with endorsement of the message. I spent six years as Executive Director of Indiana’s ACLU, and I can attest to the fact that far too many Americans share that confusion. I wish I had a dollar for every time the ACLU was accused of being for pornography because we defended someone’s right to choose his own reading material, or the times we were accused of being “the criminal’s lobby” because we were insisting on someone’s right to due process, or the many, many times we were accused of being “godless” and against religion because we were defending someone’s right not to be coerced into some government-imposed religious observance.

It’s understandable that people in other countries don’t understand the most basic feature of the American approach to individual rights–our right to make our own decisions about what to read, watch and believe, free of government involvement. It’s less understandable, less forgivable, that so many Americans don’t get it either.

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Chik-fil-A

Let me be clear about my personal reaction to Chik-fil-A’s corporate homophobia–expressed by its financial support for anti-gay organizations and most recently by the “guilty as charged” statement of its President. I do not patronize Chik-fil-A, and I encourage my friends and family to spend their money elsewhere. When the occasion arises, I communicate my disapproval of the corporation’s message and my hope that consumers who agree with me will communicate theirs by eating elsewhere.

But I do not applaud efforts by elected officials to treat the chain differently than any other business because of its message and beliefs.

When I was at the ACLU, the Klan was denied the right to hold a rally on the Statehouse steps. Other organizations routinely were granted permission to do so. We represented the KKK– the Jewish Executive Director (me), our African-American legal secretary, and a gay co-operating (volunteer) attorney. It certainly wasn’t because any of us agreed with the Klan’s odious message. It was because we knew that the government that could deny equal rights to the Klan today could just as easily deny equal rights to us tomorrow.

In our system–a system far too many of us don’t understand–the government has an obligation to remain neutral about ideas, even–as Justice Holmes memorably wrote–about “the idea we hate.” If Chik-fil-A, or the Klan, or the ACLU wants to open a store or office somewhere, and are otherwise following the rules, their views should not be part of the decision-making process.

The gay community, especially, should understand the importance of government neutrality. Until very recently, government officials could be counted on to exercise their powers to suppress, rather than support, GLBT folks. The social change we rightly celebrate–where a Chik-fil-A is roundly condemned for anti-gay bias–would have been impossible but for the free marketplace of ideas that the First Amendment protects.

In our system, government stays neutral so that individuals don’t have to. That means we each have an obligation to be active citizens and intentional consumers. Moral bullies want government to fight their ideological battles for them; free citizens fight their own.

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Thank You for Proving My Point….

It seems that each new day brings new evidence that too many Americans haven’t the foggiest idea what’s in the U.S. Constitution or what its provisions mean.

Exhibit #1: the large cross erected on public property in Dugger, Indiana. The huge cross with “Jesus Saves” prominently printed on it has been challenged by Americans United for Separation of Church and State. The town fathers–evidently recognizing a loser when they see one–agreed to move it rather than spending tax dollars on expensive and hopeless litigation. But residents are up in arms. My favorite quote came from the fellow who said people who were offended could just look elsewhere.

How much do you want to wager that he’d feel differently if the symbol on public property praised Satan? or Allah? or Karl Marx?

This is a recurring battle. As the courts routinely point out, the rules are pretty clear: government cannot sponsor or endorse religion. Government cannot sponsor or endorse atheism, either. Government must stay neutral when it comes to the expression of political or religious beliefs. Allowing a religious symbol on public property is an impermissible endorsement of that religion–exactly the sort of favoritism the Establishment Clause of the First Amendment forbids.

This sort of conflict is easy enough to resolve. Move the cross to private property. People will still see it.  Folks who reject this relatively simple fix are really giving away the game–no matter what they claim, they don’t just want people to see their message. They want government to endorse their message. They want special status and recognition for their religious beliefs.

Exhibit #2. Micah Clark. Again.

The AFA has its panties in a bunch–as usual–because the Indiana Chamber of Commerce is considering opposing the mis-named “Marriage Protection Amendment.”

Why oh why would the Chamber “want to see marriage unraveled and destabilized” in Indiana? Micah wants to know. Here’s a clue, Micah–that “destabilization” hasn’t happened anywhere that same-sex marriages are legal. Quite the opposite, in fact–Massachusetts, the first U.S. state to recognize same-sex unions, has one of the lowest divorce rates in the country.

Leaving aside the hysterical rhetoric and tortured “evidence” in the AFA’s Weekly Email, one sentence leapt out at me: “It is the people of Indiana who should decide on marriage.”

No, Micah, it isn’t.

In our system, we don’t get to vote on other people’s fundamental rights. We don’t get to vote to segregate black people, we don’t get to vote against interracial or interfaith marriages. We don’t get to vote to abolish jury trials, or to override restrictions on search and seizures. We don’t get to vote to make people Baptists or Episcopalians.

Justice Jackson said it best, many years ago, in West Virginia Board v. Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Maybe you don’t agree that people who are different from you should have the same civil liberties and rights that you enjoy. Fine. Don’t agree with it. But it is the law of the land, and you really ought to know that.

I wonder what new evidence tomorrow will bring….

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