Impeach the judges...

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The substance of this post is the text of a recent e-mail discussion I was copied on between two friends of Baylyblog--one a prof and the other an attorney employed as a civil magistrate. Note particularly this statement in the first half of the discussion: "our biggest worry is of a corrupt government whose police violate our civil rights."

There's no doubt this should be the greatest concern of believers, today.

Christians consistently have failed to recognize that every accretion of power and authority to the civil magistrate comes at the expense of the authority and freedom of the mediating institutions of the Church and family, not simply the freedom of the individual. Typically, political conservatives worry only about individual liberty, but the freedom to obey Scripture and exercise authority in the Christian home and Church is under sustained attack, also, and is every bit as serious a usurpation of authority as our loss of individual freedom.

God has ordained authority in the households of the home and Church, and the denial of freedom to those institutions to govern themselves according to Scripture is growing year by year and is a central part of the decline of the West we have experienced. Yet sadly, there has been almost no warning given by our church and home fathers.

The State is our Savior-Protector/Provider and the more dependent the State renders her citizens, the more those citizens will place their faith in the god of the state rather than their own personal gods. And so we arrive at the place where America's most popular gods, whether Mormon, Roman Catholic, or Protestant, pose no particular threat to the state's bipartisan and unilateral commitment to destroy any person or institution blocking the path to her glorious dominion...

(And of course, the problem with Muslims is that they refuse to go quietly into this dark night.)

As AIDS deaths softened everyone up for the normalization of sexual idolatry, so the 9/11 deaths softened everyone up for the normalization of political idolatry and for a cancerous growth of the authority of the state.

Claiming that the safety of her citizens demands it, she tortures her enemies, bequeaths health to all her citizens, filters every text message, chat, e-mail, and phone call for subversive content, redefines Islam as a religion of peace, passes hate speech and hate crime legislation, and takes children from their natural sovereigns placing them under the protection of the state. Meanwhile Christians hide their convictions from google by the use of pseudonymns.

First they told us we could have our religion in private, and we bit.

Now we're never alone, and we're hooked.

But what will we do in the end?


* * *

The Indiana Supreme Court just decided in Barnes v. Indiana to abolish the common-law right of citizens to resist illegal police entry into one's home. Note that the issue here is not whether the entry is illegal or not; the Court has ruled that even if the police action is undoubtedly illegal, if the homeowner resists, he cannot avoid going to jail. The majority opinion (not the dissent, the majority!) says:

"The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215. ...

In the 1920s, legal scholarship began criticizing the right as valuing individual liberty over physical security of the officers. ... In response to this criticism, a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s. ...

We believe . . . that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence....

As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance."

Here then are a couple of comments by friends of Baylyblog:

The Court says that they are changing the common law of Indiana to eliminate the right to resist unlawful entry by a policeman, and changing it purely because they think it is bad policy nowadays tho it may have been good policy in the past.

The Court wrongly, I think, says that in the past, the common law gave no other redress to someone whose house was unlawfully entered by the police. I guess that that is wrong because wouldn't there be a common law tort action against the police for that-especially if the police caused monetizable damage such as messing up your house? Perhaps sovereign immunity woudl cover this, but I should think the policeman would be personally liable if he were acting unlawfully.

What is radical about the Court's action is that they forbid even a reasonable degree of resistance to undisputably illegal and unjustified police behavior. If a policeman says to me, "I think you're ugly. So I'm going to shoot your children one by one here in front of your eyes," and I push him gently out of my front door, the Court says I am guilty of battery. They argue that I had another choice: I could have let him kill my children, and then sued for monetary compensation.

I especially don't like the idea that my alternative remedy is to sue for monetary compensation in a court staffed by jackasses like these 3 judges. Note, too, that our biggest worry is of a corrupt government whose police violate our civil rights, and if that happens, it is little comfort to say that we can apply to another part of our government-the judges- for monetary compensation.

There is opportunity now for judicial reform in Indiana. Governor Daniels killed it once before (and the only Supreme Court judge appointed during his term is one of the Majority 3), but maybe he could be pressured to support it now.

The current system has the Supreme Court judges picked by a 9 person panel with 4 members appointed by the governor, 4 by the Indiana Bar Association, and 1 being the current Chief Justice. Thus, the judges are picked by the Indiana lawyer association plus the current chief justice,w hatever the governor or voters may want. (More specifically, the panel picks 3 names, and the Governor does get to choose which of those 3 will be appointed, but the nomination is where the real power is.) See here. The current Constitution also allows up to 9 justices, though currently there are only 5.

Thus, what should happen is that the Republican House and Senate and Governor should amend the Constitution to use selection by the Governor alone, after which the Governor should add 4 more justices to the Court.

Note, too, that impeachment is not an option. No matter how grossly a justice violates his duty, or how horrible a crime he commits, he can only be removed from office by the same unelected commission that picks judges.

Another friend of the blog says:

I agree the Indiana appellate judiciary must be reformed. We can only expect more and more decisions like this one, expanding the power of the state over the individual while chipping away at and dissipating our already dwindling patrimony of ancient privileges, immunities, and liberties. These judges say the times they are a changin' and so must the law. Public policy and all that. Yet, if it had been up to judges like these, I suspect there never would have been a common law right to resist unlawful police action in the 1600s, 1700s, 1800s, or 1900s.

This ruling is part and parcel of the modern conflict ethos, or rather, non-conflict ethos. Resistance isn't futile so much as it's gauche. Better to neutralize the dissenter and bring him down to the station out of sight of the neighbors. There we'll talk reasonably and tidy things up out of public view. Open disagreement and conflict is dangerous, particularly in the form of manful resistance to state encroachments. Can't we all just get along?

The direction of jealousy has changed. The founders were jealous of government, knowing it was manned by sinners like themselves subject to all sorts of enticements to avarice and ambition and wicked abuse. They knew power intoxicates. They themselves were tempted by it.

But these justices are jealous for government prerogatives and their faith in the state is well nigh unshakeable. They seem to lack the most basic self-awareness. They're ready to make all sorts of allowances for state functionaries, agents, and ministers but are deeply suspicious and wary of individuals. It's as if the progressivism they believe has so greatly improved state arrest and detention process has left untouched the citizens who compose the body politic. Those citizens have somehow become more dangerous than the magistrates chosen from their midst. Progress certainly has a way of separating the wheat from the chaff. By the way, aren't these judges aware of the rampant sodomy and gang violence in prisons? Is a county jail that much safer today than the prisons of yore?

The Judicial Nominating Commission should be abolished along with the Missouri plan of retention elections after the first two years of an appellate judgeship and then every ten years thereafter. That system was instituted in Indiana in the early 1970s after the Warren Court revolution, and just before SCOTUS imposed Roe v. Wade on the nation. In other words, the federal judiciary had been flexing its political muscles since the New Deal, becoming more aggressively intrusive and tyrannical, and all the sudden Indiana piles more insulation between appellate judges and the people who used to elect them. It's rotten to the core.

Somehow the present system tends to produce liberal appointees, but I doubt unfettered gubernatorial appointment would be much of an improvement without the possibility of impeachment by the senate and recall by the people (neither possibility exists under current state law). Bayh had no trouble appointing appellate judges who were reliable supporters of abortion or expanded homosexual rights. But Republican picks like Chief Justice Shepard (and Governor Daniels's first pick Justice David) voted in the majority here.

The appellate judiciary has given us enough evidence that it can't be trusted with life appointment or its state equivalent in the form of ten-year retention votes. I don't have any trouble trusting the people of the 50 states who had banned abortion over the judiciary which repealed the ban. Forced to choose, I'll take the fickle passions of the people over the cold ruthlessness of the judiciary.

There may be another solution. These judges think that the common law is simply malleable, judge-made law whose content may be emptied or re-fashioned at their will. To the contrary, an Indiana receptor statute imports the common law of England and declares it Indiana law. (Ind. Code 1-1-2-1.) These judges have no authority to dispense with the common law solely because they believe it conflicts with "public policy." The General Assembly is the legal policy-making organ in this state; it alone can pass law in derogation of the common law. Until the legislature does so, courts should be bound by the common law.

My first thought on hearing about this opinion was whether it was a reaction to recent passage of a statute that forbids Indiana local governments from banning or curtailing gun possession. That kind of law fills civil government elites with profound disquietude and dread.

The opinion has stimulated surprisingly little publicity. Michelle Malkin does discuss it here. And the Volokh Conspiracy legal blog has a post with almost 200 comments here.