https://www.nationalreview.com/2022/01/how-progressive-prosecutors-are-betraying-the-constitution/
They’re perverting the principle of prosecutorial discretion to mutilate the laws.
T he job of a judge is to apply the law as it has been written by the legislature. For the last half-century, that has been the most effective argument mounted by constitutional conservatives against activist courts. The judge is not at liberty to legislate. That is, the judge may not revise the laws, under the guise of clearing up nonexistent ambiguities, or filling in nonexistent gaps, or — if we may be blunt about what activist judges actually do — distorting the law to fit the jurist’s subjective sense of fairness and justice.
In a democracy, what is fair and just is left to the judgment of the legislature — the representatives answerable to the people whose lives are directly affected by the laws the legislature enacts. Legislatures are limited only by the Constitution, not by judicial sensibilities.
These principles have been so energetically touted that lawyers can recite them from memory. More importantly, they resonate with the public — to the point that, at confirmation hearings, even progressive judicial candidates pretend to be bound by the law as written. Indeed, it is the historical achievement of the late, great Justice Antonin Scalia that seventies-style judicial freewheeling is no longer de rigueur. Judges must at least go through the motions of wrestling with the text of statutes and constitutional clauses. If they fail to acknowledge the binding law (even if only as a pretext for trying to circumvent it), higher courts are virtually certain to reverse their rulings.
So here is the question: Why do we not demand that prosecutors meet this same standard?
In big cities all across the country, criminals are running amok due to the derelictions of the hard Left’s “Progressive Prosecutor Project” (a label I am proud to have had a hand in). But what are these derelictions? To hear critics tell it, they won’t enforce the laws. That’s true, but doesn’t quite nail it.
It’s not like these folks don’t show up for work every day — these anti-prosecution district attorneys, such as Chesa Boudin in San Francisco, Kim Foxx in Chicago, Larry Krasner in Philadelphia, George Gascón in Los Angeles, and, newly added to the cabal, Alvin Bragg in Manhattan. To the contrary, progressive prosecutors work very hard. They have to. Like activist judges, they seek to legitimize their machinations by masquerading them as law.
When we look at what the statutes actually say, however, we find that progressive prosecutors are not applying the laws enacted by the people’s representatives. They are unilaterally decreeing new laws — the same mischief over which activist judges endure ridicule and reversal.
No, no, progressives counter, there’s a big difference: Unlike judges, our prosecutors have been elected. Some, in fact, such as Krasner, have been reelected. They are politically accountable. If the people who live under a prosecutor’s nonenforcement policies do not approve of the inevitable surges in crime, they can oust that prosecutor in the next election.
There is some force to that argument. Maybe we should just shrug our shoulders and say, “If Philadelphians want Larry Krasner, then they deserve Larry Krasner . . . good and hard.” But ballot box aside, many people in Philadelphia and other Democrat-dominated crime sanctuaries are voting with their feet. They are moving to communities that, because the rule of law still holds sway, are strong and stable. Shouldn’t that rush to the exits be part of the “elections have consequences” ledger?
In any event, the main flaw in the “they’re elected” defense of progressive prosecutors is constitutional. Executive officials are not elected to make the laws but to enforce them. In this regard, separation of powers is not merely a legal technicality. The Framers understood that the quickest path to a democratic republic’s destruction would be the accumulation, in a single set of hands, of the powers to legislate and to enforce the laws. To have ordered liberty, the two must be kept apart. The alternative is despotism, in which the rulers either repress their opposition or, as we are seeing with progressive prosecutors, foster a modified anarchy where the laws go unenforced except to the extent they can be weaponized against political foes.
It is no answer to unconstitutional action that the offending official has been elected. Among the Constitution’s main purposes is to stave off tyranny of the majority. If a prosecutor, mayor, or governor acts lawlessly, it is not a defense that if the people don’t like it they can oust him or her next time around.
Progressives and the prosecutors they’ve heavily invested in are well aware of this. That’s why they usually resist the urge to claim that being elected is a license to mutilate the laws. Rather, in their exquisite chutzpah, they insist that the mutilation is really just the upholding of a foundational constitutional principle: prosecutorial discretion.
This is exactly what Alvin Bragg has just done.
