A cogent and correct view of the role of the judiciary in America. How far we have strayed from founding principles. Thanks, Glenn Foster, for reminding us of our heritage and the wisdom of our country's founders!!
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Burlington Free Press July 29, 2003
"The Federalist is the most thorough explanation of the principles upon which our republic was founded. The Federalist is a collection of papers written by John Jay, James Madison and Alexander Hamilton explaining the rational behind their design for our government. Madison and Hamilton were instrumental in writing the American Constitution, while Jay was the first chief justice of the Supreme Court.
The recent pronouncement by Gov. Jim Douglas that we need less activist jurists is a welcome one, firmly rooted in the text and intent of these founding figures, the delegates at the Constitutional Convention, and those in every state ratifying our Constitution. Those who think otherwise have a vision different from those who wrote and approved the Constitution or simply don't understand it.
Kimberly Cheney pronounced (with reference to nothing), 'Courageous judicial action is a vital part of our American system' (Free Press, July 14). However, even a cursory review of The Federalist will clearly show that the court has (or should have) a relatively minor role in defining what laws the public is subject to.
Hamilton states in Federalist No. 78, 'the judiciary is, beyond comparison, the weakest of the three departments of power.' He concludes that, 'the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution.'
A far cry from the judicial activism lauded by those who jump for joy whenever a new right is finally 'discovered' after more than 200 years. These same people are generally members of a faction that fail to get the majority of the people to agree with their agendas. Too often, however, some court somewhere will take up their cause in the absence of a willing majority.
Cheney cites the failure of the Vermont Legislature "for over 100 years" to correct the perceived problem with education as justification for the courts to impose what ended up being Act 60. There is a very good reason the Legislature "failed." The people didn't want it. How can the power of five people (the Vermont justices) rightfully usurp what has been the will of the majority "for over 100 years"?
"All legislative powers shall be vested in a Congress of the United States." So states the very first sentence of the Constitution's Article 1. The power to impose laws on citizens rests solely with elected representatives put there by those citizens.
Supreme Court justices are not elected. It is very dangerous to a free society to permit a small handful of people, rather unaccountable to anyone, to have such powers. It is sad, if not frightening, that many have lost sight of that fundamental concept.
If it was important enough to the people of Vermont to dictate school spending to the extent the Brigham decision effectively did, or to grant civil unions to unconventional couples, than their wishes would have been borne without court intervention.
Some say that because the people did not wish those things, the courts must step in and act; the court must do what the elected bodies have refused to do. No clearer example can be made that we have abandoned the founders' design.
It is high time we returned to our fundamental principles of a government for and by the people. Gov. Douglas has taken a first bold step in that direction.
Glenn Foster is a resident of Newport Center.
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