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The Myth of Secular Judicial Independence

But the problem of free-for-all judicial independence versus biblical judicial independence is worse than the typical judge catering to his favored political masters and rendering “judicial independence” opposite to its original meaning. Today’s judicial independence is an out-of-control religious, philosophical, political, jurisprudential anarchy that, if continued, will result in the spiraling out of control of the American experiment in representative democracy. Why?

1. If every appointed or elected judge can interpret the law as he sees fit, then the law is as malleable as clay. Any objective can be reached, given enough time (as the secular evolutionists say of astrophysical, geological, and biological evolution), by the determined progressive jurists, so-called.

2. It means law is not law. And why should law be law? The secular evolutionists as to the source of the modern earth and its inhabitants would ask the same question: Why should law be law? On their terms, law is not law, just temporary policy until it evolves into whatever is needed/expedient/helpful at the time. In the biblical sense, law is, and it cannot change, just as the very God who gave it does not change. It may change in its application in a certain time, but the law, God’s law, cannot change.

3. It means there can be no constitutions upon which republics can be built. If we do not submit to the existence of a law issued and irrevocable by God, then why would we submit to a document written over two hundred years ago by men long dead and unfamiliar with our present circumstances?

4. It means all judicial opinions are equal. The biblically-guided judge in rural Alabama is no better than the radical, atheist, evolutionary judge in Washington. All opinions are equal, and if one part of the country believes homosexual perversion is a valid basis for marriage or that cannibalism is a valid form of nutrition while another part believes the opposite, then so be it. We’ll see which view evolves into the best for the rest of the country or not. Actually, the presumption would be against the biblical view because the bible is old. Old is bad; we evolve from the old to the improved, although, strangely, it seems that no one of the progressive camp considers that evolution can lead to extinction as well as improvement.

5. It means the liberal judge is a “true” judge. The classic definition of a legislator is a writer of law. The classic definition of a judge is a person who interprets the law in accord with its original meaning, not a re-writer of the law. Therefore, in the classic and the biblical view, the liberal, progressive judge is not a judge but a legislator, a violator of his oath as a judge, a perverter of the law. That person is not fit to be a judge at all. But in the modern, progressive view, where truth cannot exist as a fixed compass point and plumb line for law or governing, the judge who sticks with the original intent of a law is thwarting progress, is hopelessly wedded to an out-dated and perhaps deleterious interpretation of a law that we no longer need. The classic judge is holding back the movement of progress, is intellectually inferior because he refuses to use his imagination to come up with a modern view of the law that meets the modern need. Take marriage as an example. To the progressive, expanding marriage to include the homosexual is required by the modern need for such. For the judge who believes law, and therefore, the definition of marriage, is fixed, it’s a twisting of the law.

6. It means permanent deadlock, at best. The progressives will always seek to put legislating perverters of the law into judgeships, while conservatives will always be horrified by the damage such judges will do to the law. The conservatives will always try to have originalist interpreters of what the law is, while progressives will consider such judges backward, stupid, stubborn hindrances to necessary progress in society. There can be no middle ground between the two views.

7. It means toleration of this stalemate will result in one of three endings: One, the victory of the progressives, resulting in the ever more rapid devolution of law into personal opinion, and ultimate chaos. Two, a permanent stalemate, as political opponents fight over who will be judges, and a resulting patchwork of fixed laws along with changing laws across the political and geographical landscape of the country. Either way, the society breaks down, more rapidly in the first scenario. Three, the disgust by the people in a legal system falling apart, meaning the people turn to some philosophical/political/judicial system that has enough will to enforce a consistent and more traditional view of law on the society. That means our present system is merely a transition period from one jurisprudential view – biblical – to another – what, we don’t know yet. It could mean a transition period that results in the people demanding a return to biblical law, but in my opinion, we don’t see that as probable yet.