By BOB BIRD
As most Americans know, there are three co-equal branches to government: legislative, executive and judicial.
Except they’re not. As in co-equal. Understanding correct constitutional principles is about as rare as finding an uncut diamond while walking the beach. The fact that civics textbooks, law schools, judges and the mainstream press contribute to this woeful ignorance cements it all in place, of course.
Gov. Michael Dunleavy’s recent move in docking the judiciary’s administrative budget the sum of their unconstitutional abortion funding is an historic, unprecedented and excellent beginning in making the needed corrections. It will focus the public’s eye on the fact that courts are no friend of constitutions.
Calling them a “neutral referee” as retired Superior Court Justice Sen Tan did, or “impartial and fair”, as did Elaine Andrews (also retired Superior Court judge), is like pretending all the umpires in the World Series are ex-Yankees: There may be a neutral call or two but the outcome will never be in doubt. They have demonstrated that they want their turn at bat as well as on the pitcher’s mound.
Judges are political creatures who disguise their prejudices with long faces, black robes and the trappings of dignity that they do not deserve. They protect the case-law oligarchy of which they are a part, standing on the shoulders of generations of misapplied jurisprudence.
We can start with Montesquieu, whose influence permeated James Madison and Thomas Jefferson: “Of the three powers, the judiciary is next to nothing.”
And Alexander Hamilton in Federalist #78: “[The courts} have no influence over either the sword or the purse. It may be truly said that they have neither force nor will, but merely judgment.”
Of the three branches the true superior one is the legislative, which has the power to impeach and remove the executives and judicial members. One can gaze at the constitution all day and never see what courts have seized as if it were written in stone: “The judiciary shall be the sole interpreter of this constitution and shall have power to enforce their will through the Judicial Police.”
This means that the judiciary, who in Article 4, Section 1 of the state constitution has its powers defined and granted by the legislature, is a weak sister whose opinions may or may not be accepted by the executive, who possesses enforcement.
This is further demonstrated in Article 1, Section 22, the warping of which was instituted by the self-proclaimed “neutral referee” Mr. Tan in 2001, who insisted that “privacy” meant that abortions had to be funded, despite the clear language in Sec. 22 that declares “The legislature shall implement this section.”
Thus we have the daring overthrow of constitutional powers, which liberals imagine that they are the shining knights who protect them. Not only have the Alaskan courts assumed the power to create rights that they are clearly not permitted to define, but have seized the power of the purse from the legislative branch found in Article 9 of the constitution.
It is assumed that the legislature, in refusing to impeach the judiciary, has yielded to this overthrow of their own prerogatives. But have they? Since 2001 it would appear that they have exercised their powers found in Art. 1, Sec. 22 by placing a limit on privacy that does not include funding of abortion. And this was once again reiterated in 2019.
In 1973 many liberal constitutionalists, even those who favored legal abortion, were shocked at the high-handed and clearly unconstitutional action of Roe v. Wade. The lawyers in the several states have merely followed the lead begun in 1819 in McCulloch v. Maryland.It is good to see that here in Alaska, which Planned Parenthood defines as an “abortion safe state” in a post-Roe culture, a courageous move by a risk-taking governor has drawn a line in the sand, not only for the unborn but for proper constitutional understanding.
Bob Bird, a longtime conservative activist, ran for US Senate against Sen. Ted Stevens in 2008 on the Alaska Independence Party ticket.