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Beware the Judiciocracy By: Michael Tremoglie
FrontPageMagazine.com | Monday, February 04, 2002

A CALIFORNIA JUDGE recently banned patriotism from the Golden State’s highways.

On January 29 Ronald Whyte, United States Judge for the Northern District of California, ruled that no American flags may be displayed near California freeways. The judge’s verdict was the result of a case brought by two Santa Cruz women, Amy Courtney, a 27-year-old farm worker, and Cassandra Brown, a 32-year-old Spanish teacher. These women displayed two freeway banners, which were removed by California Department of Transportation (Caltrans) officials. The first banner asked, "Are you buying this (Afghan) war?" and the second, a mile down the road, asked, "At what cost?"

Although the banners were removed, an American flag was not. Caltrans approved neither of the displays. However, Caltrans’ unofficial policy was to remove all banners and signs considered road hazards except for the U.S. flag. Judge Whyte ruled that Caltrans must adhere to its policies and apply them equally.

Judge Ronald Whyte stated that the Caltrans policy of removing all banners and signs except for the American flag "does not withstand scrutiny under either the reasonableness or viewpoint-neutrality prongs," two criteria for being considered constitutional.


Is displaying an American flag tantamount to displaying a sign that says, " Call 976-BABE"? This is analogous to stating that there is no difference between displaying a sign in a high school or college hallway soliciting patrons for a local auto dealer and a sign soliciting patrons for the school prom. It is suggesting that displaying an American flag is an affirmation of American foreign policy ergo, some sort of sign critical of American foreign policy must be displayed as well, or it violates the Constitution.

By this reasoning, Judge Whyte’s courtroom, which displays the American flag, should display a protest banner as well. And if an office worker displays an American flag in his office while a colleague displays a banner criticizing American policy in Afghanistan, it would presumably be unconstitutional if the employer or the building landlord ordered the protest banner removed.

Yet, even such compulsive "consistency" was violated when a New York City high school was ordered to remove a sign that says "God Bless You," while signs for a meeting of the Gay, Lesbian and Transgendered Students Union were allowed.

Meanwhile, U.S. District Judge Norman K. Moon says dinner prayers at the Virginia Military Institute are a "religious exercise" sponsored by the state. "Drafting a prayer to conform with generic, religious norms does not make that prayer secular," Moon wrote.

In 1987, U.S. District Judge Russell Clark actually ordered a tax increase for citizens to fund a desegregation plan for Kansas City Schools. This judge ordered a 150 percent increase in property taxes in Kansas City, a 1.5 percent income tax for Kansas City and decreed that the state of Missouri was to pay the balance.

Since when did the Constitution authorize a judge to order a tax increase? Sounds a little bit like King John and the Sheriff of Nottingham.

In other cities, judges have ordered criminals released from prison for no reason other than jails being, in their opinion, "overcrowded." Still other judges have overruled voters by decreeing that some laws enacted by plebiscite are unconstitutional. For instance, when California voters approved Proposition 209, a law prohibiting racial discrimination (i.e. affirmative action), the law was declared unconstitutional by Judge Thelton Henderson of the Northern District of California.

Fortunately judges of the Ninth Circuit Court of Appeals recognized the unconstitutionality of Judge Henderson’s decree and vacated it. Writing for the majority opinion, Judge O’Scannlain wrote, "A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy."

Would that all judges believed that were true. It seems that we are moving to a judiciocracy in this country rule by judges.

This was a concern of the Founding Fathers. During the Constitutional Convention of 1787, Massachusetts delegate Elbridge Gerry voiced his concern about the "sophistry of the judges." Federalist 78 warned that judges may exercise their will instead of their judgment in their interpretation of laws. Federalist 81 declared that allowing the judiciary to construe the law would enable it to mold its own laws.

Judicial activism has caused trepidation among conservatives for a while. Now the usurpation of government by the judiciary is becoming a concern on the left. Ironically liberals complained about the Supreme Court determining the last presidential election, when it was the liberals themselves who instigated the court case. Yet liberals still routinely use the courts to enact laws as California’s new flag-ban demonstrates.

Judges on both sides of the aisle need to remember that America is not a judiciacracy. Our country is a nation of the people, by the people and not just the people with law degrees.

Michael P. Tremoglie is the author of the new novel A Sense of Duty, and an ex-Philadelphia cop. E-mail him at elfegobaca@comcast.net.

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