- The Washington Times - Saturday, February 5, 2005

Former Rep. Bob Barr is upset because the Kansas Supreme Court “ordered” the Kansas legislature to raise taxes for education. (“Tyranny of judicial taxation,” Jan. 14.)

The ruling is outrageous, but Mr. Barr should save his alarm for legislatures that support the charade of judicial “authority” for such rulings. There is no such authority. The powers of the three branches of government over each other are clearly spelled out in the Constitution:

• The president appoints judges and officials, but the Senate gets to approve or disapprove the appointments.

• The House may impeach the president, judges and other officials for inappropriate conduct in office; the Senate tries anyone impeached.

• The courts may rule on the constitutionality of laws passed by the legislative branch.

• The Congress may circumscribe the judicial branch’s venue.

The state constitutions follow the same model.

In recent years, activist courts have increasingly ruled where they lack authority. Political factions have often praised such incursions for their own ends, knowing legislatures could not enact such matters because they lack popular support.

Alexander Hamilton called the courts the “weakest” branch of government. We chuckle at this now because the courts seem so powerful.

Just recently, an individual sued in U.S. District Court to prevent prayer at the presidential Inauguration. The whole country held its collective breath to see if the courts would “allow” the customary invocation and benediction during the ceremony.

But this is nonsense. Courts cannot “rule” over the executive branch (or over the legislative branch) this way. Even if the court had ruled against prayer, the president need not to have obeyed regarding his own Inauguration. That is beyond the court’s jurisdiction.

Hamilton was right. The courts are weak, for they have no power of enforcement. They have no police, no army — no power of sword or purse. They depend on the good will of the other branches to enforce their directives.

That good will worked for a long time. The courts made (mostly) sober, well considered rulings that the other branches enforced. But now, the whole “gentlemen’s arrangement” threatens to crash because the courts have overstepped their role. Judicial adventurism has swelled a constitutional crisis that must finally come to a head.

No doubt, Mr. Bush’s advisers were relieved they did not have to defy the court at the Inauguration. But eventually they will have to do so, as the courts spin farther out of control. A showdown is inevitable. Indeed, it is only a matter of time until a legislature realizes rulings like that in Kansas are bogus and need not be obeyed. If the Kansas legislature defies the court, what will the court do? Hold them in contempt? Sue? Send the sheriff to arrest them?

Like most politicians, Mr. Barr has been brainwashed into thinking the courts are supreme. He can’t see that the solution to judicial tyranny is right under his nose.

When courts make silly rulings — e.g., men must be allowed to marry men, that citizens may not speak the name of the Christian God, that perversion must be taught to children in the public schools, that a legislature must enact a judicially dictated agenda — the solution is simply Nothing. Legislatures need not act. Executives need not execute. People need not obey. Thundering silence is enough to defeat judicial overreach.

All branches of government derive “their just powers from the consent of the governed.” But the courts’ “power” to rule outside their defined purview is an illusion because it is unjust. This will happen when a judge tries to jail a principal because he permitted a Christmas carol or tree at a school.

The people will not countenance this. Their disobedience will finally break the tyranny of the courts. The only question is when this will happen. But politicians like Mr. Barr will not lead the way. They have too much to lose.

The Patriots of 1776 did not create a nation by mindlessly saluting every silly law put forward by the British Crown. Their limit was a tax on tea. What will ours be?

A Republic, as Mr. Reagan famously said, is not a suicide pact.


Potomac Falls, Va.

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