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DADT and American ignorance

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While this news is fairly fresh, I’m not going into detail about it in this post. You can read about it here if you’re not familiar with the story. What I’m interested in is a phenomenon I came across while reading the comments to the story (I like to get a sense of people’s reactions to a story, even though most of the internet seems to be populated by trolls, I mean, trolls). The phenomenon I’m talking about is bursts of outrage at the idea that a single judge can overturn Congressional law. This is expressed in a variety of ways, often with the commenter claiming that they are themselves against DADT, but they don’t feel it’s right for the anyone besides Congress to repeal a law that Congress passed.

Our readership is comprised of intelligent people who are almost certainly familiar with the idea of judicial review (a concept that has existed since before the United States), therefore I will also not go into great detail about what it is, how it works, etc, etc. Besides which I’m sure Xanthippas can explain the legal aspects of it to a much greater degree than I can. However, let me point out that judicial review is, in its most basic sense, the ability of the judicial branch (at whatever level it operates) to interpret (ergo “review”) the laws passed by the legislative branch and declare them invalid if necessary. The situation in which most of us see the process of judicial review is almost always the US Supreme Court. In that case, it’s always a question of whether a law or its implementation violates a section of the United States Constitution. Examples of those cases can be looked up here, but a couple of instances would be the abortion (Roe v. Wade) and the very recent one about gun rights (McDonald v. Chicago).

Suffice it to say, the idea of judicial review is well established. Now we’ve seen time and time again that conservatives gripe continually about “judicial activism“. To conservatives, judicial review itself is often conflated (deliberately) with judicial activism. This is, of course, obviously a ploy to control the dialogue about how great a role the judiciary should play in American governance. One might suspect that this is because those conservatives know that judges tend to restrain the excess of the legislative branch, but that’s a different article altogether.

Now, after having laid all that out, to bring this back to the recent injunction against DADT (which may result in its repeal if not appealed), many of the people who I see commenting on these articles, both on the NY Times website and Yahoo, are not conservatives complaining about judicial activism, but rather people expressing their astoundedness that a court (one single judge, as it turns out) can effectually turn over a federal law passed by both the Senate and the House. There are people wondering how this is even possible. Or expressing their outrage at such an act (with the second most popular argument being that some civilian judge in San Diego doesn’t need to be telling the military how to run its affairs and third being “I hate gay people!”). I shall copy and paste a sampling of these comments (so that you don’t have to wade through all those comments on your own).

A female judge, member of the Judicial Branch of the Government, suspends an Act of Congress in a trial without a jury. What we have here is a Constitutional collision.

How does one dinky, appointed judge in San Diego have the power in a nonjury trial to reverse a worldwide policy? This isn’t progress — this is one individual ambushing the democratic process to appeal to a special interest group, to heck with the consequences and the elected representatives of the United States.

 I feel it is very dangerous for a judge to tell the military how to do its job. Many military policies violate due process and free speech.

How can a judge overrule everybody in Congress? Although the goal is a good one, the method this judge choose to use to get there is going to cause backlash.

I think DADT is a stupid policy but I also think that this is not the courts’ call to make.

The military comes under the president’s domain. He is the Commander in Chief. We have a division of powers, checks & balances. Want to get rid of that policy have Congress pass a law or persuade the Commander in Chief to cease enforcement of that policy.

What’s next, the military chiming in on matters judicial? Anyone in favor of that?

To tell the truth, most comments appear to be laudatory and quite happy with the result, but of course people who are not complaining are probably not also questioning why this is possible even though they don’t understand it either. My point being that a shocking number of people are expressing complete unfamiliarity with the idea that a court is empowered to strike down laws. I know most Americans tend to be pretty ignorant, but given that this power of the third branch of American government has been in place for over 200 years, you’d think people would be used to it by now. I mean, nobody is shocked when Congress passes a law. It’s that basic a function of that branch of government. Nor should they be when a court strikes down a law, although if your idea of a court comes from Judge Judy, I suppose I can’t be too surprised at complete ignorance of what its function really is.

Of course, there are people who go to the trouble of trying to explain why this is completely legitimate in those same comments, but it’s probably the case that most adults don’t really know what the functions of the three branches of federal government are. Which is why Obama (and every other President) takes flak for laws that don’t get passed (and laws that do get passed), the economy, the federal deficit, and so on. Or why people (conservatives) talk about an “activist” court “creating rights” that supposedly don’t exist (I guess they never heard Jefferson on Natural Rights).

Anyway, that’s my thoughts on that. Congratulations to all those service members who (for now) don’t have to fear being discharged just for being who they are.


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