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The Tempting of the Rule of Law in Wisconsin

Who knew that the mandatory deduction of union dues from government employee paychecks equals the front of the bus?

Legislators don’t wear robes, nor are their symbols blindfolded. Americans indulge partisan politics in lieu of anarchy, tyranny and/or continual armed combat. In 1776, we chose self-government over the arbitrary rule of a king, which arbitrariness is no less so when exercised by judicial oligarchs. In 1789 We the People ratified a Constitution that assigned “all legislative powers” to Congress, none to the judicial branch.

Yet, today in the Badger State, the Rule of Law meant to be secured by our Revolution, hangs in the balance of the recount of an election for a seat on the Supreme Court of Wisconsin in which the Democratic Party candidate (Assistant Attorney General JoAnne Kloppenburg) winked and nodded promises to be the Public Service Employee Union’s Super Legislator even as she sought to don the neutral black robe behind a sightless respecter of persons/non-union recognizing Lady Justice.

How did we get to this point of the political seduction of judges tempted to make law?

It started with Dred Scott (see also Roe v Wade et seq and the present Justice Anthony Kennedy, but I digress), but the latest version came in Wisconsin, when, after months of free political speech, the seminal “progressive” state elected majorities of Republicans to the State Legislature and a Republican governor. Their legislators passed a “non-fiscal” law, after prior notice of the date and time for the vote to all concerned including those Democrats that had fled the state to deny a quorum, that, among other things, ended the practice of taxpayer funding of union dues collection. Their governor signed the bill.  But before it could take effect, a state judge declared the bill void due to a lack of proper notice of the vote. The case has been appealed and is expected to eventually reach the state’s highest court.

That Governor Walker has so far complied with court rulings requiring the continued deduction of union dues from government paychecks has caused some on the right to howl. Others have bemoaned the supposed “lack of a legal strategy.”

Yes, my “one man with courage makes a majority” signature line celebrates a chief executive that famously once defied a U.S. Supreme Court order. But DeVine Law agrees with the author of The Tempting of America: The Political Seduction of the Law, in which Judge Robert Bork counsels that such exercises be rare and in which he supports the election of judges in political contests since so many have succumbed to the temptation to eschew judicial restraint in favor of result (political) oriented decisions.

The liberals are those that most often can’t arouse majorities to their preferred legal enactments, hence their “need” for help from the bench. Conservatives, on the other hand, usually benefit from rulings that honor the actual words of the Constitution and statutes. That the latter usually agree with the result of an honest interpretation of the laws should not be held against them, including the Republican incumbent in Wisconsin, Justice David Prosser.

The gnashing of teeth on the Right

The problem with criticisms of insufficient conservative legal strategies is that the Democrats play by different rules, i.e. no rules. They lose the election. No problem, let’s flee to Illinois and prevent the majority from passing laws we don’t like. They lose votes on bills. No problem, let’s shop for a liberal judge that will veto the majority.

The present ruling only attacks the process before which the law was passed. I actually suggested that they quickly re-pass the law with the prescribed notice rather than merely appeal the matter. Of course,  once the present case is resolved, the next appeal will attack the law on constitutional and/or statutory interpretation grounds, and I have no doubt that there are liberal judges-a-plenty ready to badger the English language to keep the taxpayer-funded, labor-union-deducted-dues-for-Democrats money laundering operation going.

If the Wisconsin Supreme Court were to ultimately rule against the bill on the grounds that its passage required a super-majority since it is “fiscal” bill because it merely “affects” fiscal matters, it will create chaos in state law. All bills not passed by such majorities could be challenged. Presently, the statute and court rulings narrowly define the term “fiscal” as only being those bills that directly affect state spending and taxes.

How much chaos would the Democrats create so that they have another crisis they can’t waste? There appears to be no limit, even if it means further abrogating the Rule of Law and self government itself.

There may come a time when it will be ripe for an Andrew Jackson moment in Madison, but not before the recount and more legal battles in search of blind, robed justice.

In the meantime, given the outrageous behavior of so many of today’s labor unions, especially including their celebration of sloth as Illinois fugitives, why not replace Labor Day with a national holiday on baseball’s Opening Day? At least until the next strike!

Mike DeVine

Legal Editor - The Minority Report

Atlanta Law & Politics columnist for Examiner.com

“One man with courage makes a majority.” – Andrew Jackson

More DeVine Gamecock rooster crowings at Modern ConservativeHillbilly PoliticsUnified Patriots,  Political Daily and Conservative Outlooks. All Charlotte Observer and Atlanta Journal-Constitution op-eds archived at Townhall.com.

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