Judicial jabber blurs the clarity of the U.S. constitution | SummitDaily.com

Judicial jabber blurs the clarity of the U.S. constitution

Special to the DailyMark Hillman

If someone misplaced our only copies of the U.S. and Colorado Constitutions and we were left to reconstruct them based upon what courts have said about them, the reconstructed version would look almost nothing like the original.For starters, the clarity and brevity of the founding documents would be replaced by endless exceptions and equivocations. Courts’ “interpretation” of our constitution is very much like the children’s game of telephone in which a phrase is whispered from child to child until the last child hears something remarkably different than the first.The First Amendment to the U.S. Constitution says, in part, “Congress shall make no law … abridging freedom of speech.” Once the rather obscure “abridge” is defined (to cut short; curtail; to diminish or reduce in scope), the meaning is crystal clear: any law that limits free speech is unconstitutional.Nevertheless, judges have allowed Congress, state legislatures, universities and government agencies to erect all sorts of laws and regulations that limit speech.

Likewise, the Bill of Rights in the Colorado Constitution wasn’t hard to understand – until judges decided to explain it to us.For instance, Section 7 says, “The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures; and no warrant to search any place or seize any person or things shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.”That passage may be a bit cumbersome, but it clearly says that government cannot seize your property or arrest you unless it has probable cause, supported by sworn testimony, and knows where you or your property can be found.Yet, the next 63 pages summarize how those words have been interpreted.The constitutional provision for home-rule cities and towns gives them “the full right of self-government in both local and municipal matters,” but it is shredded by judicial ruminations and contradictions.

The constitution is only as good as the judges entrusted to uphold it. Consistent with human nature, some judges can’t resist expanding their own authority.Rather than simply say that the law in question is or is not constitutional, judges explain their rulings at length. They also tend to explain how unconstitutional deficiencies might be corrected. Each of these commentaries, unless trumped by a higher court, contributes to “case law.”Although it may be insightful to understand a judge’s reasoning, case law becomes a devil’s playground used by lawyers and judges to stand the law’s plain language on its head.While case law is to be subordinate to the plain language of the law itself, judicial opinions devote far more energy to justifying their decision through case law than to reconciling it to the law itself. This doctrine of stare decisis means “to stand by that which is decided” or let previous cases guide your decision.

Stare decisis is meant to promote consistency, but when precedent isn’t faithful to the plain language, following precedent simply leads even further off course. Judges may disregard precedent if they believe it is clearly wrong. In practice, however, they are just as likely to do so because precedent doesn’t produce their desired outcome than because it contradicts what the law plainly says. If our laws need modification, the question is who should decide – judges or the people? Unless we believe that black robes possess mystical powers of wisdom and fairness, the answer is clear: The people must decide.Without judges who will uphold the law’s plain language, rather than legislate from the bench, the power of the people to govern themselves is no more sacred than our ever-diminishing freedoms.Sen. Mark Hillman is the Republican majority leader of the Colorado Senate. His e-mail address is mail@markhillman.com.

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