Black, A Symbol Of Mourning . . . And The Color Of Judges’ Robes
By William Bailey (08/18/03)
A black dress or a black suit worn by grieving family members . . .
A piece of black tape on the badges of law enforcement or fire department members . . .
A black armband worn by some ethnicities . . .
All of the above indicate the grief and loss of a loved one or a comrade-in-arms.
Have we come to a point in this country where the color of judges’ robes also indicate that we should be in a spirit of mourning ? And, the emphasis here is on the robes of the justices of the Supreme Court of the United States. Do the rulings and public utterances by the members of the Supreme Court, in any way, reflect that they have gone far a field from what was intended by the Founders of this Nation when powers were assigned to that branch ?
Recently, a number of the justices of the Supreme Court have publicly stated that, in making certain decisions, they have taken into consideration the laws of foreign nations. The job of the court as assigned to it by the Constitution is to rule on the laws of this country, based on the Constitution. There is no reference whatsoever to “weighing” what other nations do or do not do. They are supposed to be the Supreme Court of the United States.
In another recent incident, a Supreme Court justice, speaking before a group from the American Bar Association, expressed his concern over mandatory sentencing in the Federal courts. In that same speech, he indicated his concern over the number of people incarcerated in Federal prisons. If they broke the law and a jury found them guilty, based on the evidence, and they were sentenced to serve time . . . where else should they be, Mr. Supreme Court Justice. If they’ve been falsely accused, convicted and/or imprisoned, then bring them back to court and undo the judicial “mischief” that was done . . . and do it quickly, not years later.
There have been a number of news items recently setting forth the premise that the Supreme Court (and the rest of the Federal Judiciary) has now moved from being a co-equal branch of government to being the most powerful of the three branches. I suppose that might be one of the reasons why members of the Supreme Court feel no reluctance to take to the “baked chicken and green bean” circuit and advocate specific positions on this issue or that. Isn’t it interesting that, during confirmation hearings, it used to be that the quickest way to NOT get confirmed was to even let on that you had a position on any issue that might come before the court. Now, they go out and take a position of advocacy. And, some of those issues could, conceivably, end up before the court. Something got turned around here.
It’s always instructive to consult what one or more of the Founders had to say when we consider weighty and Constitutionally related issues. I did so and find that Thomas Jefferson, in 1821 (writing to Spencer Roane) had this to say:
“The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.” (Emphasis added)
In 1820, Thomas Jefferson wrote the following to Thomas Ritchie:
“The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric. They are construing our Constitution from a co-ordination of a general and special government to a general and supreme one alone.” (Emphasis added)
Alexander Hamilton wrote, in Federalist 78:
“The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” (Emphasis added)
Mr. Hamilton further wrote, in Federalist 80 (as he describes the function of the Federal judiciary:
“First, to all cases in law and equity, ARISING UNDER THE CONSTITUTION and THE LAWS OF THE UNITED STATES.” (Emphasis added)
No reference by Mr. Hamilton to consideration of the laws of any foreign nations.
In Federalist 81, Mr. Hamilton went on to write:
“In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution.” (Emphasis added)
Black . . . a symbol of mourning . . . and the color of judges’ robes . . .
Do we need to be in a period and spirit of mourning ? Looks as if that might just be the case.
(Printer friendly version) Email: William Bailey
