The Justice Principle

Yesterday’s Supreme Court decision in Heller v. District of Columbia was not only an important decision for the 2nd Amendment and gun owners, but also shows very clearly the precarious balance of the court. The Heller decision has something in common with the week’s earlier decision regarding the death penalty for child rapist (Kennedy v. Louisiana). Both cases were decided by a 5 to 4 majority: with Justice Kennedy being the fifth vote in each decision. His vote in the Louisiana case was a disappointment to those who favor the death penalty and oppose convoluted readings of the Constitution. His vote in the Heller case is a surprise and a thrill, as it allowed the court to make the proper, Constitutional decision; protecting the value of the 2nd Amendment and ensuring gun owners the right to keep their firearms.

Justice Kennedy’s pattern of being the pivoting “swing” vote in countless decisions is disturbing for many reasons. But it is illustrative of the import of a judge’s character. Judges without solid, grounded principles of justice and fairness deliver popular opinions designed to maintain popularity and image, subverting justice and placing the focus on themselves and not the law they are suppose to protect. Presidents and governors must be accurate judges of character if the legal system is to stop its decay into arbitrary legalism. Judges do matter, and a candidates ability to select qualified and principles judges is as much of a reflection on him as it is our justice system.

Illegal but Justified

The European [Union] High Court has come to an interesting conclusion: breaking the law to stabilize the labor market is okay! From the AP:

In a judgment, the European Court of Justice said that even though discrimination based on age was illegal, the imposition of the 65-year threshold for workers can be justified to stabilize the labor market and if proper pension is provided.

The specific details of the case are not what concern me here, but the precedent. If stabilization of the labor markets is a justifiable reason for breaking the law, why shouldn’t stabilization of the grain market or furniture industry be an equally just reason? What about support of a various industry, or protecting a market? And can this expand to areas outside of economics: parenthood, education, family and medicine? What comes next?

This is, of course, a slippery slope argument, but I believe it is a valid one. We have seen cases both here in the United States and abroad where the ends have been said to justify the means. And sometimes they are right—extraordinary measures do need to taken in times of crisis. But when we consider an unstable labor market with high employment that has been in such a state for over a decade a “crisis” we may have passed the tipping point. Does the continual failure of American school children give the President the ability to fire all the teachers in the nation, even though they are local employees? No, because he has not the authority to do so under the laws of the United States.

This then is the key point: one may only do what one is allowed to by law. The E.U. court ruled in favor of a pension system that has been in place for over 20 years, saying it was a necessary instrument in the interest of the nation. But it was still illegal and contrary to the laws of the E.U., which are made by the people through there legislature and ought to be the supreme authority in the land. American Founding Father Alexander Hamilton talked about this in his Federalist Paper No. 78, discussing the role of the courts in deciding conflicts of law between constitutions and legislative acts:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statues, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather then the former. They ought to regulate their decisions bty the fundamental laws, rather than by those which are not fundamental. [emphasis added]

Some will argue that the EU does not have a constitution, which is true, but neither does the Realm of Great Britain. All, however, are ruled by recognized fundamental rights and ideas, including, among these, lack of discrimination. Countless laws have been passed regarding discrimination of all sorts, including age, and these principles are regularly cited by all manner of businessmen, politicians and judges. But they are meaningless if a perceived crisis can cast them all aside. There is a reason the Roman Republic had the opinion of declaring a dictator, but only for six months, and it was never exercised because of an economic report. If such a thing is to be called a crisis we are beyond crisis.