Leaving, Beathing Nonsense

Assume that you own a venerable old house, a stately affair, the main structure dating from (say) 1947 and occasional additions thereto added over the years.

Proud of the structure, you hire Smith to maintain it.

When you return home one day, you find that Smith has undertaken to completely renovate the home, removing some rooms entirely, redecorating others, starting construction on entirely new wings. Flabbergasted, you demand an explanation; "you were only hired to maintain the structure, not change it."

"‘Maintain’ is a tricky word", Smith replies. "The house needed to be updated to meet your changing needs. You don’t need fireplaces anymore, so I removed them and installed radiant heat. The old light fixtures were incredibly inefficient, so I replaced them with florescents. The color and decor of those front rooms was so 1950; I changed them to accord with modern tastes."

Horrified, you reply: "But I liked it the way it was. If I wanted to change it around, I would have."

"Hey, it’s still essentially the same house," Smith answers. "I just updated it. Homes are living-breathing things. If you just let them sit there, they’ll become antiquated and fall apart."

You look around. Gone is the character of the home; it no longer flows elegantly, as did the original design. You kinda like the solar upgrade, and might have done it yourself, but you dislike the idea that Smith would take it upon himself to unilaterally make that decision for you.

And, so, you show him the door, thanking him for his efforts, but explaining that he seems to have misunderstood the role for which he was hired.

As it is with homes, so, also, should it be with constitutions. When the folks hired to preserve the structure begin to act as if they own it, making modifications they believe appropriate, without the consent of the true owners, they should be invited to find areas of employment more suited to their talents.

Over the course of many years, the Justices of our New Jersey Supreme Court have, increasingly, asserted the right to "maintain" our constitution without regard to the wishes of the people who wrote and ratified it. Out of whole cloath, they created an obligation to affirmatively zone for low and moderate income housing. They invented a state obligation to spend gazillions of dollars on urban schools. They manufactured a state obligation to pay for abortions, and asserted a constitutional right for pregnant teens to secure abortions without telling their parents. They wrote out of the constitution the clear limitation that municipalities be divided into not more than one legislative district and wrote into it a "right" for gays to receive substantial taxpayers subsidies.

These represent only the more egregious examples of a Court which simply makes up the rules as it goes along, conjuring new "rights", imposing new public obligations, establishing new policy, without even so much as an iota of actual textual or historic support for its decisions.

Just as someone hired to maintain a home lacks the authority to remodel it to suit his own whim, so, too, judges, hired to interpret the constitution, are not entitled to modify it. Their job description requires that they take the constitution as it is, not as they wish it might be. If they conclude that the document fails to meet modern requirements, they are free to urge that it be changed. And, like every other citizen, they may cast their ballots in November for candidates who share their views of desirable policy.

But their position endows them with absolutely no power to depart from the text and history of the document. So, for instance, having concluded that the drafters of the 1947 instrument did not intend to compel public subsidy of gay couples, the Court is obliged to arrive at the conclusion that such subsidies are not constitutionally required. It’s not even a close case. However passionately one believes the policy to be desirable, no honest jurist – one with the qualifications for the job – could arrive at the conclusion that such subsidies are constitutionally required.

Judges who refuse to respect the basic limitations on their authority need to be replaced.

When judges abuse power, impeachment represents the appropriate Legislative response.

Such is not a simple matter of disagreement with the results in a particular case, but a fundamental assertion by the Legislature that (a) in a constitutional republic, legislatures, not courts, effect policy; and (b) when judges attempt to exercise legislative powers, the branch actually possessed of same reserves the right to defend its prerogatives.

New Jersey’s Judiciary needs to be disabused of the absurd notion that the constitution is a "living, breathing document", subject to ad hoc amendment whenever a majority of the Supreme Court objects to the result at which simple interpretation would compel it to arrive. Removing Justices who lack a basic understanding of the appropriate role of a judge represents a good first step toward reining in a judiciary run amok.