Since Noel has me thinking about this, I would like to express an opinion on what this debate is really about. The rhetoric surrounding this debate has long ago spun off into personal attacks on the Left, whereas the Right debates about how democratic principles are expressed through the peculiar mechanics of the Senate. Neither issue has anything to do with what is really being decided here, although -- perversely, for a lover of logic -- the ad hominem attacks of the Left come closer to the substance. Though they are each an expression of an informal fallacy, they do at least grace the surface of the matters at issue. The parliamentary arguments avoid those issues entirely.
There are two issues for which our side is really fighting:
1) The Bill of Rights, where we are either asking for the government to stop ignoring parts they find troublesome -- the Second, Ninth and Tenth Amendments, for example -- or, for the government to reinterpret existing understandings in a way we find more amenable to individual liberty (e.g., the Establishment Clause, to allow for a more open expression of religious principle by individuals, even though they be judges or military officers, and groups, even though they be Boy Scouts).
2) A great rebalancing of the power of the Judicial branch with the other two branches of the Federal government, which is the third such effort in the history of our Republic.
The two previous large-scale attempts to rebalance judicial power were the early struggle between Jefferson and Madison, and the famous "Supreme Court Packing" attempt by FDR. Both of these are usually portrayed as failures by the Executive and victories by the Judiciary. I think that this is an incomplete understanding.
It is easy to see why people have that understanding, however. Consider Thomas Jefferson's reaction to Marbury, and you will see that the Supreme Court carried the day. Judicial review by the USSC has prevailed entirely over Jefferson's suggested alternatives, a Constitutional convention or the regular use of the amendment process.
Nevertheless, Jefferson was nearly right that Marbury made the Constitution "a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." The judiciary of the day was rather restrained in comparison with our own, which invents new rights out of "penumbras," and denies plainly expressed rights either by refusing to apply them, or by pretending to find them too difficult to understand.
If the conflict had ended with Marbury, the Court would have had a complete victory. It did not, however. The Jefferson Administration joined with Congress in further attempts to restrain judicial authority. These met with only mixed success, on their face: some of the particular acts succeeded, and others failed.
Here is the thing that is usually missed, and the great success of the movement: the USSC did not overturn another law on constitutional grounds for half a century. While it retained the power to do so, in practice it stopped thwarting legislative intent and executive power.
This seems to me something to feel good about. It does not really serve any citizen's interests to see the judiciary subordinated to the other branches. On the other hand, it must not be allowed to be the final authority, or it becomes superior rather than co-equal. This was a success for the Republic. The Court retained the power to rule on constitutionality of laws, but it recognized that it did so at peril of drawing the fire of the people and the other branches. As such, it acted with great circumspection in applying this power.
Contrast with today. Now, any law in any state that is in any way controversial is instantly slapped with a lawsuit and taken into court as unconstitutional. Federal courts today rule laws unconstitutional as a regular affair, and often on purely procedural grounds. Consider this First Amendment case:
A federal judge ended the ban on Confederate flags in Hurricane High School, in part because the overwhelmingly white school does not have a history of racial tension or violence... Copenhaver wrote that he lifted the school’s ban on Confederate flags because the school has not had “flag-based physical violence between students, a pervasive background of demonstrated racial hostility or the involvement of any hate groups aligned on either side of a serious racial divide.”Leave aside the question of whether the Confederate flag is appropriate. There are two other matters more important. The first point here is that it either is a form of political speech, or it is not; and if it is, the First Amendment's language is plain: "Congress shall make no law... abridging the Freedom of Speech[.]" Not, "unless it would cause tension." There is a principle here, not a procedure.
Without that racial turmoil, the school does not have the right to trample on Bragg’s First Amendment right to express himself freely, Copenhaver ruled.
“That was the key, that the flag didn’t cause any problems there,” said Bragg’s American Civil Liberties Union lawyer, Roger Forman of Charleston. “You know, as long as the flag is properly used it is not a symbol of hate, and I think it’s fair to say that’s what [Copenhaver] found.”
The second is that the Courts feel so free to exercise the power to rule on constitutionality that they do it even in matters relating not even to laws of overwhelming importance, but to the internal disciplinary rules of a single High School -- this particular one, which has no tension, as opposed to any other one, which might. It is bad enough that every sphere of human organization is brought under the rule of the Federal Courts. It is worse that they feel no restraint whatsoever in exercising that power. It is worst of all that they feel so expansive as to freely state that the First Amendment means one thing at your school, and another at a school across the way.
The First Amendment is a ball of wax. This power of the courts strips it of the ability to serve as a guiding principle. The Constitution is harmed by this.
FDR's court-packing "scheme," as it is usually called, was the second great movement to rebalance the relationship with the judiciary. What is important here is that it had broadly the same results as the first: the attempt as such failed. However, the court -- which had until that point been ruling New Deal programs unconstitutional both left and right -- ceased to ban FDR's reforms. The government as we know it today, the one that all good Liberals admire, is the result of that rebalancing. Faced with the combined ire of the Executive and Legislature, the court stayed on the field only long enough to win the discrete battle. It then left democracy alone for a great while, using its tremendous power only when absolutely necessary.
The third such rebalancing is upon us. Once again, it isn't particularly important if this or that battle is won. What is important is that the courts be reminded of who the real arbiters of Constitutionality are.
And who are they? The very ones Jefferson identified:
But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either [the judiciary or the executive]? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States.The true arbiter of the Constitution, of what it means and how it ought to apply, is the people.
The Court has, despite Jefferson, been allowed to serve as a proxy for that. It has not captured the authority from the people, however; it has only been lent it. Twice before the people have, through their representatives, reminded the court that the power must be used responsibly, or it will be removed entirely. It is time to do so again. The judiciary likely will retain the power, as they have in the past; but they also will be more circumspect, as they were in the past.
I think that Pat Buchanan, with whom I broadly disagree on most points, was right about what the results of this revolution will be. It will be a greater degree of rule by the people:
If Americans were a self-governing people, ours would be a different country. There would be voluntary prayer in the schools and term limits on members of Congress. Pornography would be restricted. There would be legislated limits on "abortion rights." The Citadel and VMI would still have their all-male cadet corps. America's cities would never have been torn apart by the lunacy of forced busing for racial balance. And, at Christmas, we could drive through town and see a beautiful display of the Nativity scene, with carolers singing "Silent Night."I dissent from the rest of Buchanan's piece, but I think this is where we are heading. I shall be glad to get there. What he is describing is nothing other than the America in which I grew up: it is home.
It is in this sense that the Left's ad hominems are closer to the truth than the tactical maneuvers of the Right, which talk about "up and down votes" and fairness and filibusters. There is a real revolution intended.
Where the Left may be wrong is in asserting that its practitioners are "out of the mainsteam." My expectation is that it is just the other way around. These tactical maneuvers of the Right are a serious mistake because they expend resources on what can only be a tactical victory.
We stand on the ground for winning a strategic victory, and we ought to press for it. Buchanan really is an extremist, but let as much of his vision stand as was quoted here. Who wants to go before the American people and oppose it?
Nor needs the Left to fear the decision, when it comes, for it will not sweep anything away from their redoubts. The restraint of the federal judiciary can only protect their interests, as it is the federal judiciary which often requires national solutions to divisive questions. Its restraint is a victory for federalism, which means for example that the "legislated restraints" on abortion may be as light as the bluest blue state chooses to enact. That leaves the Left in a stronger position than if the federal judiciary is unrestrained and -- as seems inevitable, given the composition of the Senate -- eventually swings further and further right.
This is what is really at stake. It is come time, as such times come now and again, to fight another skirmish to reassert a border. The border establishes the proper place for judicial authority. We 'who wi' Jefferson bled,' and ye who did with FDR, ought to unite on the question. It is in our interest, as it was in theirs: we for the yeoman farmer, and you for a local law that protects the programs and legal understandings you prefer.
In this, as in so much, we are brothers and sisters.
No comments:
Post a Comment