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The Court Exercises ‘Will Instead of Judgment’

3:39 PM, Jun 27, 2013 • By JEFFREY H. ANDERSON
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In Federalist 78, Alexander Hamilton wrote that when judges, “on the pretense of a repugnancy” (between a law and the Constitution), “exercise WILL instead of JUDGMENT, the consequence [is] the substitution of their pleasure to that of the legislative body” (caps in original).  Suggesting the gravity of such a transgression, Hamilton continues:  “The observation, if it proved anything, would prove that there ought to be no judges distinct from that body.”  In other words, if judges are going to act like legislators, who needs judges? 

Of course, a constitutional republic does — but it needs principled judges who view themselves as duty-bound to apply the Constitution as written, rather than lawless judges who view themselves as being free to impose their own will under the guise of construing that document. 

In truth, at least for purposes of federal law, the Constitution does not prevent Congress from defining marriage as being a union between a man and a woman any more than it compels Congress to define marriage in that manner.  The Constitution does not resolve this issue — just as it doesn’t resolve abortion and didn’t resolve slavery before the passage of the Thirteenth Amendment.  Following in the ignoble footsteps of their counterparts on Dred Scott and Roe, however, a majority of the current justices are now pretending otherwise — at the expense of the separation of powers, the rule of law, and the right of a free citizenry not to be subject to arbitrary power.

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