On a libertarian list, a fellow listmember disagreed with me about whether one should, if on the Supreme Court, refuse to enforce an unjust law. I had written,
BTW, I also have no problem with the Courts “striking down” any other actions of the other branches of the federal government–even “constitutional” ones. If I were on the Court I would probably refuse to enforce tax convictions, for example. But I would do so on moral, not constitutional, grounds.
His reply: “This is the problem. You would do the same goofy crap that that liberals do when they get on the bench — “Certainty and stability of law be-damned! I’m going to finagle this until I get he results I want in every case!”
But I’m a libertarian. I would refuse to take part in murder. I reject the idea that “The legal system is in shambles because liberal assholes have been doing this crap for generations.”
I reject this relativist thinking (equating libertarians and liberals). The problem is not “activist judges.” The problem is socialist people.
So, I gave him this simple question: you are on the Supreme Court, and a case comes before you of someone challenging their incarceration (say, for life) for income tax evasion. Now you and I know that this could be legal, and it would also be constitutional.
Would you uphold his conviction, and help sentence this innocent victim to a life in prison? Or, would you refuse to do something immoral and criminal like this?
I think I would just refuse to vote to put someone in jail: and my reasoning might be something like,
“My fellow Justices–my countrymen: The income tax statute may be constitutional; but just as legislation can override the common law; just as the Constitution is a ‘higher law’ than mere legislation; so there is a higher law than the Constitution. We judges are human beings, not mere robots, nor mere functionaries blindly applying whatever positive law may be, no matter how egregious or unjust. A Justice of the Supreme Court is not merely a judge, but a Constitutional Officer on the same level as the Executive and Legislative branches; he is one of the last resorts of the citizen pleading for relief from potentially unjust laws of the state. Jurors can judge the law as well as the facts and refuse as fellow citizens to convict someone they believe is not a wrongdoer. Can a Justice do less? Can he uphold manifest injustice? Can he partake in murder and kidnapping? No. He cannot. I certainly cannot. Yes–I took an oath to the Constitution but I took this oath because of a deeper allegiance to justice itself. So if there is a conflict between justice and the Constitution–the Constitution be damned. I will not participate in murder, or crime against the innocent. I dissent. “
What would you do?– “While I myself as legislator or voter would not favor this legislation, and while I regret the 16th Amendment was ratified, I have no choice but to vote to put Mr. Smith in jail. Ruining his life is a price worth paying so that I can stay on the bench and continue to do …. well, not justice, but continue to help enforce whatever positive law happens to be in place. For without positive law enforced by the state, where would we be?”