By Robert F. Sanchez, JMI Policy Director
If you stare long enough at Leonardo da Vinci’s iconic painting “The Last Supper,” would you discover that the artist has slyly concealed beneath it an oil-on-velvet depiction of dogs playing poker?Probably not – unless, of course, you are a federal judge with an astounding ability to see what others miss.Consider, for instance, the U.S. Constitution. It has been around for more than 200 years. Yet federal judges, when they stare at it long enough, routinely discover new provisions that were evidently hiding in plain sight but never noticed by previous generations of myopic judges.In the 1960s, for example, the U.S. Supreme Court led by Chief Justice Earl Warren found that the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” This discovery ultimately led to the Roe v. Wade decision legalizing abortion.Earlier this year, a federal judge in California discovered that the Constitution renders obsolete the longstanding definition of “marriage” as the union of one man and one woman, a definition rooted in thousands of years of Judeo-Christian tradition. This revelation caused the judge to toss out the results of a referendum in which California voters overwhelmingly affirmed their support for marriage’s traditional definition.More recently, another federal judge in California has auditioned for the role of Commander-in-Chief of the U.S. military. She ruled that the “Don’t Ask, Don’t Tell” law duly passed by Congress and signed by President Clinton is unconstitutional. (Last week a federal appeals court granted a temporary freeze on the ruling.)Obviously, ever since the case of Marbury v. Madison in the earliest years of our republic, the judicial branch of government has been conceded the right to review acts of the other branches of government.However, in the hands of activist federal judges serving lifetime appointments, there has been a growing tendency to go too far, impinging on authority properly reserved for the elected officials in those other branches of government.Unfortunately, this virus of judicial activism has also spread to state courts, including ours. Indeed, the Florida Supreme Court’s series of decisions striking from the November ballot various amendments duly passed by the Legislature is a troubling example of “judges gone wild.” (For an analyses of the remaining proposed amendments, read JMI’s “Voter Guide for the 2010 State Ballot Proposals”.)Let’s hope that in the future, wiser appointments to the bench will contain this virus before it can cause even more damage to our republican form of government.