Barr v. Engler

REGAN, Judge

(concurring):

I respectfully concur.

I fully subscribe to the rationale appearing in the majority opinion; however, I would like to add several words to what has already been said.

Judicial power is never exercised for the purpose of giving effect to the will of the judge, but always for the purpose of giving effect to the will of the people as expressed by them through the medium of their Constitution.

The Constitution of Louisiana simply omitted to restrict the duration of the Governor’s appointment of a judge of the Municipal Court for the City of New Orleans. If we should assume the power of supplying this omission we would then be engaged in judicial legislation, which could, if carried to its logical conclusion, always defeat the will of the people. If a change of the Constitution is warranted by the exigency of this occasion, and I believe that it is, then the change must occur through the electorate who created it, and they alone possess such power.

The function of a judge, and the very nature of the judicial process, is limited to the interpretation of the law and not to the making thereof. This is especially true when the subject, as here, involves the Constitution as distinguished from the jurisprudence. The very liberty of our nation depends upon how carefully this principle is preserved.

To reason otherwise, in the last analysis,, could result in judicial tyranny which ultimately would destroy the democratic process and the division of government — that is the executive and legislative branches thereof — all of which was created, in the nature of checks and balances, for the protection of the people.

To reiterate only for the purpose of emphasis, the exigency of the occasion, no-matter how distasteful it may be, never warrants the exercise of judicial power for the purpose of giving effect to the will of the judge, but only for the purpose of giving effect to the will of the people as manifested in their Constitution.

The State in commissioning its judges-has commanded them to judge, but neither in its Constitution nor in its statutes has it formulated a code to define the manner of their judging; however, a guiding principle that prevents a judge from straying from the path of justice is full recognition of the concept that the final cause of constitutional law is for the welfare of the people who created it, and any rule which misses this aim cannot permanently justify its existence.