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Libertarian Thoughts from Renaissance Guy

Archive for the ‘Courts’ Category

Judging a Judge

with one comment

     After reading comments from reader Scott Erb, I have decided to post some thoughts on what I would say to Judge Nina Gershon, the federal judge who recently ruled that the United States Congress was acting unconstitutionally when it decided not to give funds to ACORN, the community organization group that has made headlines over the last few years.

     If I were to meet Judge Gershon, I would treat her courteously and would show her the respect to which her office entitles her.  I would most likely listen more than talk, since she certainly knows more about the law (and perhpas other things) than I do. 

     If, however, she did ask me what I thought of her ruling, I would summon up the courage to say, “Your Honor, I have a completely opposite view from you regarding the proper way to interpret the Constitution and also regarding the role of the judiciary.  Therefore, I do not think that your ruling was correct.  However, given your approach to the Constitution and to the judicial branch’s role, I think you made a very sound ruling.

     “Then again, you could make just about any ruling you want, based on the way the judicial branch has redefined its role and re-envisioned the Constitution for the last 35 years or more.  All you ahve to do is determine how you want to rule and then say that something in the case “is equivalent to” or “amounts to” something that is clearly unconstitutional.  Perhaps you are right in saying that Congress’s defunding bill amounts to a bill of attainder, but I think not.  I would think that a bill of attainder would be an act that declared an entity guilty of crimes and that deprived them of property or liberty (or in severe cases, life) as a punishment.”

     Of course, she would probably already have interrupted me, but if not, I would say, “Your ruling strikes me as being just like many other rulings in recent times in which the judicial branch has set itself above the other two branches, rather than being equal to and in balance with  them, as the Constitution outlines.  It also strikes me as an example of writing laws from the bench, rather than allowing the Congress to write laws, as they are given power to do in the Constitution.”

     Then I would shut up and let her tell me why she thinks I am wrong.  I would probably learn a lot, but I doubt that I would change my mind.

     If I had the chance, I would ask her what I think is a simple question.  I would want to ask why she accepts the authority of Congress to give out money but rejects their authority to withhold money.  It seems to me that you cannot have the first without the second.  She would, I guess, have a good and interesting answer.


Written by ambrosianideas

December 17, 2009 at 7:14 am

The ACORN Case Revisited

with 3 comments

     A reader called Spherical Time pointed me to this article by Glenn Greenwald about the recent ACORN defunding case.   The article explains the case and the ruling better than the article I had read previously.  However, I have not changed my mind.

     There are several flaws in Greenwald’s (and Judge Gershon’s) thinking.  The most obvious one is that in order for the Congress to have violated the ban on bills of attainder, the Congress would have had to actually enact a bill of attainder.  No such bill was passed.  When the case is appealed, I predict that several judges and justices will point to the fact that no such bill of attainder can be produced as evidence.

     As always there are two sides to a court case, and the government’s side is that Congress was simply defunding an organization that it had previously chosen to fund.  It was not “punishing” them in the legal and judicial sense of the term.  That claim makes perfect sense.  They did not arrest anyone involved in ACORN or put anyone in jail.  Neither they did not fine them or confiscate their property.  They simply exercised their right, with the President’s approval, to discontinue giving them money.  (I predict that at least one judge or justice will point out that you cannot on the one hand grant that the Congress has the power to give away money but does not have the power to stop giving away money.)

     To take the view that the Congress found ACORN guilty of a crime and punished them by not continuing to disburse funds to them, you would have to first presume that any money that ACORN hoped to receive from the government was already their property and could not legally be taken away from them without due process.  To believe that it was already their property, one would have to assume that either Congress was naturally or constitutionally obligated to give it to them or that ACORN was naturally or constitutionally entitled to have it.  (Which is why I wrote in the earlier post that the ruling presumes a constitutional right for a private organization to receive government funds.)

     If they have no inherent or legal right to the money, then it is not a punishment to stop giving it to them.  (Would I be punishing my children if I stop giving them an allowance after they graduate from high school?  They would say yes.  I would say no, since I am not obligated to give them an allowance then, or now, for that matter.)


     As for Greenwald’s comments at the bottom, they certainly do not apply to me.  I am against judicail activism–left, right, or middle.  It doesn’t matter.  Judges are not supposed to write laws.  They are supposed to settle legal disputes based on the text of the Constitution and on duly enacted laws.

     I for one would not care if a right-wing organization were defunded by Congress.  Congress has the power to give money or not to give money to whomever they choose for whatever reasons they choose.  My preference would be that no private organization get any money from the government, anyway.

     Besides, Greenwald’s argument cuts both ways.  Judge Nina Gershon was appointed by President Clinton.  It’s just as easy to say that her ruling was politically motivated as it is to say that opposition to her ruling is politically motivated.

Written by ambrosianideas

December 13, 2009 at 11:59 am