Some years ago I
became part of an audience watching a minor feud over the proper way to display
the American Flag and what, if any meaning a gold border on the flag has.
There are certain individuals who maintain that if the flag has a gold border
in a courtroom, it signifies that the court is applying either martial law
or admiralty law, depending on who you listen to, rather than the common
law of the states or under the constitution. This is of extreme importance
to them because they believe that it would prevent you from having a fair
hearing if and when you were on trial in such a courtroom. This modification
of the flag was, apparently authorized by an executive order of President
Eisenhower in 1959 for use in specific circumstances. Having practiced
as a lawyer and as a non-attorney professional for over 20 years, I generally
fail to see what the fuss is about. I have never seen martial law applied
in the courts when I’ve been present. Still some people are very concerned.
It is possible that right now these people may be concerned about the wrong
thing. For the question of exactly what law we are governed by has
now been raised by none other than the Supreme Court of the United States.
Two recent decisions, Lawrence v. Texas and Grutter v. Bollinger,
contained opinions asserting the belief that in making decisions on matters
of American Constitutional Law, the high court should rely not on precedent,
not on the intent of the framers of the Constitution, not on the laws of
the 50 states or the Constitution itself. Instead the authors contend
that we should look to the European Council for Human Rights, the United
Nations, and in the words of Anthony Kennedy, what “has been accepted as
an integral part of human freedom in many other countries.”
Meanwhile, Justices Bryer and Ginsburg in the Grutter decision went so far
as to cite to the UN Convention on the Elimination of All Forms of Discrimination
against Women; a document never ratified by the United States Senate, and
therefore having no force and effect here.
Aside from the fact that the common law system is supposed to avoid reliance
on foreign sources unless there is nothing available at home, and that the
court has seriously stepped over its mandated boundaries, there are other
serious considerations to be addressed here; for example, the sovereignty
of American Government.
Consider that in 1776 this nation was created so that we the people of the
United States could govern ourselves by our own laws and according to our
own principles. While Justice Ginsburg may consider this to be an “island”
or “Lone Ranger” mentality, isn’t that what the founders of this nation set
out to do? It sounds strangely similar to what Justice Salmon Chase
said in Texas v. White when he castigated the Confederate States for
leaving the Union, but ignored the fact that he was denying them the same
right exercised in 1776 and which he apparently approved of.
Next we must consider the role of the courts. As California Justice
Janice Brown has suggested, the role of the courts is not to impose some
outside idea of social justice on the public. Their job is to interpret
the law, and only that. If the people desire the law to change to reflect
changing values, then it is the job of the Legislative Branch to carry that
desire through. The courts, by making decisions on what the law should
be, rather than on what it is, are behaving in an unconstitutional fashion.
It is precisely this decision to ignore the law and impose her personal will
on the state of California that led to the expulsion of Justice Rose Bird
from the California Supreme Court some years ago.
Third, we cannot question that there is no reason why the people of America
should be required to follow the laws of another nation, regardless of how
moral and reasonable they may appear to be. One hundred years ago communist
doctrine was accepted by many as the wave of the future, and as the ultimate
moral and ethical system. Today it is seen by most people in its true
colors; as another failed attempt at social engineering without the moral
or ethical values that it had professed to exhibit. Many nations followed
this path blindly expecting to get the prophesied result and were disappointed
instead. Should we allow our courts to cause us to take on whatever
current fad some other members of the international community believe is
correct? Should we become potential lemmings to please the egos of
some highly placed people?
Finally, we must ask ourselves what is the Supreme Law of the Land. In Marbury v. Madison,
Chief Justice John Marshall declared that it is our Constitution, and that
any law that conflicts with the Constitution must be void. By taking
clues from foreign law and from United Nations documents the Court has potentially
subverted the entire American legal system. If we cannot rely on our
Constitution as the final arbiter of what is and is not legal, then we cannot
count on our system at all. In subverting the legal system, our entire
political structure is placed potentially at risk. If the courts do
not need to follow the law, they why should anyone else?
One other question: What did these justices learn in law school and
in all their years of purportedly distinguished service? Maybe it is
time they went back to school and took the time to read Marbury over again. That is, assuming that they did the first time around.
Steven Laib is a practicing attorney.