Wednesday, May 25, 2005
WSJ Death By Due Process
The battles in Congress over the appointment of even lower court federal judges reveal a recognition that federal judges are now, to a large extent, our real lawmakers.... If opponents of rule by judges secure the political power to obtain an amendment, it should be one that addresses the problem at its source, which is that contemporary constitutional law has very little to do with the Constitution.This is a seemingly radical position, but I don't know how else the situation could be changed. The Federal Marriage amendment is to me a repulsive and profoundly undemocratic proposition. If a state wants to recognize same-sex marriage it should have the right to do so. You don't fix a bleeding cut on your foot by cutting your foot off, and you don't corrrect what you perceive to be a federal encroachment on the rights of the people of the states by encroaching on those rights in the other direction.
...The 14th Amendment has to a large extent become a second constitution, replacing the original.
The problem is that the Supreme Court justices have made the due process and equal protection clauses empty vessels into which they can pour any meaning. This converts the clauses into simple transferences of policy-making power from elected legislators to the justices, authorizing a court majority to remove any policy issue from the ordinary political process and assign it to themselves for decision. This fundamentally changes the system of government created by the Constitution.
Because most of the Supreme Court's activist rulings of unconstitutionality purport to be based on a 14th Amendment that it has deprived of specific meaning, the problem can be very largely solved by simply restoring the 14th Amendment to its original meaning, or by giving it any specific meaning.
I can't see how the body of precedent that has been built up (which affects far, far more than the position of GLBT folk) can be nullified in any other way than by amendment of the constitution. No matter what judges are appointed, they still must rule on precedent. Judges willing to ignore precendent and strike off on their own are not automatically going to rule in a way of which you would approve. Surely it would be better to circumscribe the powers of the federal judiciary in a careful, explicit and limited way. How such an amendment would be written would need thoughtful study.
Jefferson, that tireless agitator for liberty, would have a lot to say about the current situtation:
"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."At one point Jefferson became so worked up about the problem that he wanted to give judges short terms:
—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277
----- To Pleasants, 1821I wouldn't go so far. But Jefferson makes a good point, which is that while the judiciary may acquire extremely far-ranging legislative powers, it will never be capable of effectively handling them.
[For the] difficult task in curbing the Judiciary in their enterprises on the Constitution . . . the best [remedy] I can devise would be to give future ommissions to judges for six years [the Senatorial term] with a re-appointmentability by the president with the approbation of both houses. If this would not be independence enough, I know not what would be . . .
The Judiciary perversions of the Constitution will forever be protected under the pretext of errors of judgment, which by principle are exempt from punishment. Impeachment therefore is a bugbear which they fear not at all. But they would be under some awe of the canvas of their conduct which would be open to both houses regularly every sixth year. It is a misnomer to call a government republican, in which a branch of the supreme power is independent of the nation.
----- To W. T. Barry, 1822
If ever this vast country is brought under a single government, it will be one of the most extensive corruption, indifferent and incapable of a wholesome care over so wide a spread of surface. This will not be borne, and you will have to choose between reformation and revolution. If I know the spirit of this country, the one or the other is inevitable. Before the canker is become inveterate, before its venom has reached so much of the body politic as to get beyond control, remedy should be applied. Let the future appointments of judges be for four or six years, and renewable by the President and Senate. This will bring their conduct, at regular periods, under revision and probation, and may keep them in equipose between the general and special governments. We have erred in this point, by copying England, where certainly it is a good thing to have the judges independent of the King. But we have omitted to copy their caution also, which makes a judge removable on the address of both legislative Houses. That there should be public functionaries independent of the nation, whatever may be their demerit, is a solecism in a republic, of the first order of absurdity and inconsistency.
Abraham Lincoln said in his First Inaugural Address:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.Fair enough. It's no accident that we then stood at the precipice of a great American divide. Coming to our time, the "rights" precedents of the Fourteenth Amendment have become so wide-reaching as to allow judicial review of a huge mass of economic legislation. This may provide a welcome haven for the individual, but it also severely constricts the ability of the legislative bodies to craft solutions to the problems of our time. Do we provide insurance to the poor? Yes, all agree we should to some extent. Yet the scope of the coverage granted under these programs is subject to interference by a federal judiciary, and every year the judiciary's sphere of influence expands. I tried to discuss some of the logical implications of the "class" equal protection doctrines here.
Nor is this really a right/left issue. See this article about judicial activism from the right. The power of an unconstrained judiciary is equally dangerous to all political factions, because changing the ideology of a relatively few people on the bench produces a massive shift in an largely uncontrolled power. Nor does the federal judiciary equally enforce all of the protections in the Bill of Rights. The federal judiciary has been more than happy to circumscribe freedom of speech in deference to Congress (McCain Feingold). It has blithely ignored the constitution's mandate that only Congress can declare war. It has subverted due process rights by allowing laws such as RICO, and it has not reined in increasingly aggressive tactics by the police.
Any dispassionate observer has to admit that in some cases the federal courts appear willing to dance an impressive legalistic fandango to justify a ruling that appears not dictated by the plain language of the Constitution while in others it announces soberly that it must subject itself to the executive or legislative branch in deference to the separation of powers. People from all positions on the political spectrum should pause and consider this trend. Like any oligarchy, the federal judiciary looks unkindly upon an activist and discontented citizenry, and is generally content to knock down individual rights while affirming "class" rights.
It might be wisest to pass a constitutional amendment reaffirming the WHOLE Bill of Rights and reinterpreting the Fourteenth. There is enough dissatisfaction with our current situation that a broad coalition could be formed to do this.
The issue of judges is only applicable if we view the juduciary as activist (of either stripe). That it seems to be case, now.
There needs to be a new debate, it seems. Can we tolerate a legislative that will only promote a activist court? I think that question will come back to haunt us.
But any individual judge is not free from the system of law and precedent. Right now, one way or another, they are often forced to be in the middle of areas that would be better off in the legislative bodies.
As to your remark on precedents, well, I'm no lawyer, but it seems to me that even precedents (like statistics) can be used to derive whatever is being sought. I just want to understand definitions and guidelines the legislative bodies use and abide by. Seems to me there are too many variables.
This is from Volokh - it is a 2003 commencement address from a Ninth District judge:
In short, to contend that the Constitution is an eminently mutable document is, in effect, to concede at least the possibility that the judges of tomorrow may adapt the living Constitution in a manner contrary to the very principles exalted by the judges of today. Such a possibility, it seems to me, renders the central fact of our nation’s founding -- namely, the promulgation of a written document designed to bind the will of future majorities -- a mere afterthought, if not a nullity. In so doing, it threatens to undermine the long-term health of the unique polity established by that great charter.