Sunday, April 18, 2010

Judicial Tyranny at its Most Incoherent (Piazza and Act One)

Pulaski County Circuit Judge Christopher Piazza threw out Arkansas Initiated Act 1 on the grounds that it violated the Arkansas Constitution, Article Two sections 2 and 29. The act prohibited co-habiting couples from adopting children that they were not related to in the state of Arkansas. The act was approved by 57% of the people in the last election. The act itself was a response to a previous judicial order overturning the policy of the Child Welfare department banning practicing homosexuals from adopting children.

The judge in that case said that such a ruling could not be made by the department on its own authority, there would have to be a law authorizing that. But the judge hinted that if such a law was in existence, he might have to throw it out anyway. The sponsors of the act, Arkansas Family Council, decided to make the adoption ban apply to all co-habiting couples so as to avoid singling out banning homosexuals who co-habit. This broadening was done in part to appease the leftist judges who would rule on the case.

At the time, I objected to such appeasement, and thought the initiated act should have been a straight-out ban against practicing homosexuals using the power of the state to obtain access to other people’s children. My fears were confirmed. Attempts to appease judicial tyrants do not work any better than appeasement works to mollify the tyranny of any other class of tyrant. Rather, it only emboldens them to further acts of contempt for the populace. Piazza threw the law out anyway.

I know that examining questions of law can be tedious, but the details of his two page ruling are worth looking into. The most amazing thing about the ruling once one examines it is that it becomes obvious that Chris Piazza has a dangerous misunderstanding of what elementary legal concepts like “due process” and “equal protection” mean. Further, the sections of the Arkansas Constitution that he claims as support for his decision, Article Two sections 2 & 29, either don’t apply to the case (section two) or actually destroy his claims (section 29). My point here is that Piazza is both outrageously arrogant and appallingly ignorant. It is my guess that his ignorance is of the willful type rather than the sort that is correctable simply by an exposure to knowledge. In short, he could know better, but he chooses not to. Repentance, not education, is the only hope for those types and I believe that this is what we should pray for concerning Judge Piazza.

These are grave charges I have laid at the feet of the judge, and charges so serious should not be made against an authority unless one is willing to lay out in some detail as to why those claims are true. Please indulge me as I do so here. Since he ruled that there were no federal matters at stake in the case the Constitution he refers to is that of the state of....

(deconstruction of the ruling continued on the jump....)


Blogger Mark Moore (Moderator) said...

Arkansas. I begin with a quote from his ruling. “Due Process and Equal Protection are not hollow words without substance. They are rights enumerated in our constitution that must not be construed in such a way as to deny or disparage other rights retained by the people. See ARK. CONST., art. 2, &29.”

Let’s start with “Due Process”. In our system, everyone is entitled to it, but what is it? In the traditional view it means that agents of the government must act within the law when they enforce the law. For example, if they search your home without probable cause and without a warrant, they have violated your Due Process rights. The same goes if the arresting agents attempt to beat a confession out of you. If you are not allowed access to legal council when they try you, they have violated your Due Process rights. If they attempt to convict you of a felony without giving you the right to a trial by jury, they have violated your Due Process rights.

In each of these cases, the point of Due Process is to make agents of the government follow their own laws when meting out justice. This view of Due Process is the traditional one, but radical activist judges have expanded judicial power by claiming that “Due Process” can be used to void the substance of laws, not simply validate the procedures used to enforce them.

If I could give a more concrete example, suppose there was no law in Arkansas against driving while under the influence of alcohol. The people corrected this by passing such a law via ballot amendment. If the law said that police can arrest people and assign them 30 days in jail without bail and without seeing a judge, then this procedural aspect of the law would be a violation of Due Process. If throwing that provision out was all Piazza did, that would be good, its how judges are supposed to protect us. But that is not what Piazza has done. What he has done is the equivalent of saying that the people do not have a right to determine who can drive on public roads based on their behavior. It’s like claiming that people have a fundamental right to drive even if they drink up, shoot up, or snort up. It further claims that this “right” trumps the rights of any of the rest of us to try and protect ourselves and others by putting up legal barriers to behavior we have good reason to suspect will cause damage to innocents.

Even this analogy breaks down, because the adoption law was not going to be punitive against any group. People do not have a “right” to have the state facilitate their access to other people’s children. There is no “right” to adopt other people’s children. The over-riding concern of the state in this matter is not the desire of those who wish to obtain access to children, but rather the well-being of the children themselves.

3:00 PM, April 18, 2010  
Blogger Mark Moore (Moderator) said...

The very term “Due Process” makes it clear that it is the procedures used by government agents that judges are authorized to rule on, not the substance of what the law determines is legal or illegal.

If Piazza had said, “The state must give those who have been ruled ineligible because they were co-habiting a legal process to show that they are, in fact, NOT co-habiting and are therefore eligible” then that would be a valid use of due process. But he does not do that. Rather he throws out the substance of the law, he rejects the very idea that the people have a right to place restrictions on the behavior of those who approach their government for access to children. It’s a shameful and arrogant abuse of a cherished legal concept.

This doctrine, invented by judges, expands judicial power over the legislative power. That is bad enough, but this law was enacted by ballot amendment. This means that Piazza uses this unsound judicial doctrine to expand the power of judges over not simply another branch of government, but over and against The People themselves.

Those familiar with the Declaration of Independence will recognize that governments “derive their just powers from the Consent of the Governed.” Not only is it in the Declaration, but it is in Article two section 2 of the Arkansas Constitution, one of the very two sections Piazza cites as his basis for overturning the will of the people! Hence it is clear that Piazza wields his authority unjustly in this case. The phrase was clearly intended to protect the people against abuse by any branch of government. It was meant to be a sword wielded by judges against, for example, a dictatorial Executive Branch. Instead, Piazza uses the very section which contains this warning to would-be tyrants to attempt to validate his tyranny!

Piazza also displays his iniquitous thinking in his claims that the act somehow violated the “Equal Protection” clause of the Arkansas Constitution. Words mean things. "Equal" means something. It means "of the same value". Two men having sex may be "equivalent" to a man and a woman having sex, but it is not "equal". Two people shacking up together does not have the same social value as two people who have committed to one another before God and Man in marriage. Claiming that those two things are “equal”, that is, of equal value, devalues that choice which is really of greater value by pretending that it is not. Thus a logical case can be made that treating co-habitation as equal to marriage unjustly de-values marriage. Equal protection should not mean that all choices are equal, just that the law will protect even people who make disfavored choices or belong to disfavored groups.


3:03 PM, April 18, 2010  
Blogger Mark Moore (Moderator) said...

Equal protection means just that, protection. It has nothing to do with what activities the law condemns. It has everything to do with the government protecting the victims of crimes by punishing those who victimized them. If crimes against blacks or gays were not investigated, or prosecuted, then they don't have equal protection. They should, that is what Equal protection is all about.

For that matter, even drug dealers and muggers should be protected by the law. If someone just decided to blow them away because “they were criminals anyway” the law would take offense. And it should take offense because even those whose behavior is in disfavor in one area still have the right to Equal Protection under the law. As applied to this case, it does not mean that the People don’t have the authority to ban co-habiting persons from using the state to gain access to other people’s children- it does mean that if the state did allow such adoptions then private citizens cannot choose to kidnap those children and expect the state to turn a blind eye.

So in summary, Due Process is not a blank check for activist judges to throw out the substance of laws passed by the People. Rather it means that agents of the government should follow their own laws in enforcing the law. Equal protection does not mean that the law must treat all choices, marriage, co-habitation, necrophilia, drug-use, etc…., as equal as regards to eligibility to adopt children. It simply means that that the law should protect disfavored groups equally, even while the People retain the right to make certain choices and activities illegal or legally disfavored.


3:06 PM, April 18, 2010  
Blogger Mark Moore (Moderator) said...

Another example of a disfavored group as regards to adopting children might be those who have HIV. They are entitled to the protection of the law, it is not "OK" to rob or beat them, but they still should not have "equal" legal access to adoption.

My last point about the ruling is the supreme irony of Piazza appealing to section 29 as a rational basis for his ruling. It reads, “The enumeration of rights shall not be construed to deny or disparage others retained by the people and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government, and shall forever remain inviolate, and that all laws contrary thereto, or to the other provisions herein contained, shall be void.”

Piazza is attempting to use a section which says there are other rights “retained by the people” to throw out a law passed by the people themselves! It is perhaps conceivable that this section could be used to throw out a law passed by the legislature on the basis that such a law violated some undefined right that the judge felt should be retained by “the people”. But this is not what is happening here, rather Piazza appeals to an amendment which says that rights are retained by the people to overthrow an act of the people themselves!

No doubt if he were cornered on this point he would appeal to the “other retained rights” of some minority of the population. Since any sizable population can contain any number of opinions, such a ruse is tantamount to arbitrary judicial dictatorship. The Tyrant-Judge can bench-legislate simply by picking the aggrieved minority whose views line up with his own personal preferences. He then could claim that this was the minority he was protecting. This makes a farce of the law. When our whole people have spoken, and a sizable majority of them have made clear their desires, let no judge arrogate himself above them on the phantom bases of vague rights unspecified in the Constitution itself.

Don’t think that I am an enemy of the judicial branch or contemptuous of the law. The truth is just the opposite. It is my love for our system of government, with checks and balances and high-minded concepts like Due Process, which makes me so incensed at their cheapening. We are headed for tough times in this nation. It will not be my doing, I am only foretelling. We are going to need a judicial branch that has credibility and moral authority to help hold our society together in the coming hard times.

That is why I object so strongly to doctrinaire leftists squandering the credibility of the judiciary by making such ill-informed and arrogant decisions as the one Chris Piazza imposed on the people of this state.

3:10 PM, April 18, 2010  
Anonymous Anonymous said...

What if "the people" made it so only married people were prohibited from adopting? Would you still defend their rights to pass whatever law they want?

1:59 PM, April 19, 2010  
Blogger Mark Moore (Moderator) said...

Yes, because unless the will of the majority is respected in matters of state, we are not free. We only have elaborate facades of freedom erected to deviously conceal our true subjugation to a small minority of elites.

I'd probably immigrate from such a dysfunctional culture, but I have always said that people have a right to be ignorant.

3:55 PM, April 19, 2010  
Anonymous Anonymous said...

But if the will of the majority is respected in matters of state then you could be just as unfree- Democracy is, after all, the tyranny of the masse.s

8:12 PM, April 19, 2010  
Blogger Mark Moore (Moderator) said...

I trust my neighbors to have more sense than Piazza displayed here. If I must have a tyrant, then let it be the masses. At least that way power is dispersed. Lord Acton noted that power corrupts. The tyranny of the few is thus assured over time to be a tyranny of the corrupt.

I agree with Jefferson that the only safe repository of political power is in the people themselves. Not that we are a pure democracy. We are a Constitutional Republic, and certain God-given rights are enumerated and are to be protected even if the passions of the day go against them. But a "right" to state assistance in the acquisition of other people's children is not among them.

9:10 PM, April 19, 2010  
Anonymous Anonymous said...

Mark's follow up audio on this topic:"

2:37 PM, April 25, 2010  

Post a Comment

<< Home