Implied Ratification of Judicial Amendments Jan12

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Implied Ratification of Judicial Amendments

(Please read first my post on “Rule of Law and Judicial Amendments.”)

If a Master sends his Servant on an errand with particular instructions to only buy bread, but then the servant buys jewelry instead, then the Master is not bound to pay for the jewelry, and the full legal risk lies on his Servant.  Under the law, the Master could compel the Servant to return or pay for the jewelry.  But if the Master decides he likes the jewelry, and decides to accept and wear the jewelry, thereby showing by his actions before the world that he accepts his Servant’s deviant conduct as his own, then the Master becomes legally bound as though the purchase was fully authorized, because he has “implicitly ratified” his Servant’s conduct.

Another kind of ratification is express ratification, meaning one must affirmatively authorize the conduct in question by some express words or action.  The Constitution has such a ratification process written into it – the amendment process.  Alterations to the Constitution are only to be made by a “ratification” by three-quarters of the States of any proposed amendment.  If changes are made any other way, such as by a liberal Supreme Court  “interpretation,” then such changes are technically unconstitutional.  In such a case, the Supreme Court would be like the unauthorized Servant, who did not stay within the confines of his Master’s instructions, and therefore could not legally bind his Master (the People) to his conduct.  If the People should disapprove, the Supreme Court can be legally held to account for the unauthorized act.

However, if the People should subsequently turn the other way, ignoring the Supreme Court’s grasp of extra-constitutional authority, either because 1) they ultimately decide that they like the decision of the Supreme Court, or because 2) they would rather not engage in the work required to properly manage their servant, then, whether or not the Supreme Court actually operated within its mandated authority, the People become justly bound by its decisions, because of their tacit acceptance of its behavior.  In other words, although the act of the Supreme Court is still strictly unconstitutional in its first instance, when it becomes an authorized act by the implicit ratification of the People, it arguably becomes quasi-constitutional because all the authority of the Constitution itself is founded on the same basis — namely, the approval of the People.  Thus, regardless of the Supreme Court’s malfeasance, the People will still ultimately, and justly, have to bear the full responsibility (and consequences) for the Supreme Court’s behavior, because they failed to expressly reject it at the time of the violation. [1]  [2]  [3]

This is not to say that the People cannot later repent of their ratification in a moment of better judgment, but the larger landscape will have already changed.  To continue our analogy:  With the Master and the Servant in the Market-place, the precedent will have already been set in the market-place that the Servant has a much broader authority than he really has.  Thus, market vendors will be fully justified in believing that the Servant is still authorized by the Master to do things beyond the authority only recently diminished by the Master.  Therefore, nothing short of a universal declaration by the Master, and a constant watchfulness by the Master, will be able to set the record straight and alter old habits.  In other words, the People, if suddenly they should decide to take back what they had once given away, will have to exert a large amount of energy, especially in the beginning, to create a new status quo, and then will have to learn to be ever watchful in order to prevent another costly regression.

[1] It is an unfortunate fact of life, as real as Murphy’s law (i.e. the law that man-made systems are in a natural and constant state of decay, and that only constant work can maintain them in a state of order), that pro-active watchfulness is required to prevent what should never occur in the first place, and that, failing to watch, the wrong immediately takes hold naturally, seemingly without any effort, and grows quickly into many more evils.

[2] This notion that the People, i.e. the Master, cannot blame and condemn the Supreme Court, i.e. the Servant, for conduct which the People tacitly approved by their inaction, suggests a level of duty and responsibility which far exceeds that which the People today would like to take upon themselves.  But I can see no other way for the People to retain their accountability, except through highly pro-active and surprisingly daring objection and rejection of unapproved government acts, even approaching the energy of the founding generation.  (Think of the long list of objections and measures taken against King George and the British Parliament.)

[3] Another corollary to the concept of ratification is that, if the Master does everything reasonable to object to the Servants conduct, then the Master thereby frees himself from responsibility for the misconduct.  Likewise, if the People do everything reasonable to object to unauthorized conduct of the Supreme Court, then the sin remains on the head of the Supreme Court.  Proposition 8 was a good example of this at the state level.  If indeed the People of California felt that their state courts were wrong, and if indeed they did everything reasonable to exert their powers and means to prevent the supposedly unauthorized act, then arguably the People are now morally free from blame or responsibility for the ostensible misconduct.  Thus, even though the People may have lost in the result, they still won in preserving their integrity from the perceived corruption, because they expressly rejected the servant’s authority so to act.