Dispatches from the Creation Wars

Well last night was ~~Demagogues on Display~~ “Justice Sunday II”, at which some of the most prominent religious right leaders – James Dobson, William Donohue, Tony Perkins, etc – threw red meat to their followers by railing at those evil judges out to destroy everything good and decent in America. Along the way they displayed some highly dishonest rhetoric. Like this:

Dobson evoked the framers of the Constitution, saying: “These activist, unelected judges believe they know better than the American people about the direction the country should go. The framers of our great nation did not intend for the courts to have absolute and final power over us.”

Note the subtle change from the first part of this sentence to the second. Of course the founders did not intend for the courts to have “absolute and final power over us”, but they did intend for the courts to have the power to void legislation that was contrary to the Constitution even if that legislation represented the judgement of the American people. And whenever they do so, this amounts to “unelected judges” voiding legislation that expresses the “will of the people” through their elected representatives. The fact that judges are unelected and have the power to void democratically-passed legislation certainly was intended by the founders because they knew that majorities were every bit as prone to violating liberty, probably more so, than appointed officials. The founders took the position that the executive and legislative branches, because they held the power of the military and the purse respectively, were the greatest risk to liberty and to the principles found in the Constitution and they set out to balance that risk by giving the judiciary the power, independent of the ebbs and flows of public opinion, to strike down legislation that oversteps the boundaries of executive and legislative power found in the Constitution. You can see their position clearly expressed in Federalist 78:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

I would argue that our primary complaint against the courts ought to be that they do not exercise this authority nearly often enough, not that they are too “activist”. They have allowed the executive and legislative branches to vastly expand the scope of their authority by abstracting beyond all possible meaning the various powers granted to those branches in the Constitution. They have rubber stamped such abstractions as allowing the interstate commerce clause to justify legislation that regulates activities that are neither interstate nor commerce (and their recent and very mild attempts to reign in such abstraction, as in Lopez and Morrison, have brought a strong rebuke from Senator Specter).

So the real problem, in my view, is not that the courts have been too “activist”, but that they have not been activist enough in enforcing the limitations on executive and legislative authority found in the Constitution. Through such fictions as the “presumption of constitutionality” and the “rational basis” test, we have allowed the dramatic expansion of governmental power far beyond any boundaries that could be justified by reference to the text or history of the Constitution. Perhaps it’s time for the judges to host a meeting like this complaining of “legislative activism”.

Comments

#1 jcw
August 15, 2005

I am a new reader to the blog. Have you offered an opinion on the recent Kelo decision by the Supreme Court? If so could you direct me to it? If not do you think this decision goes against the “manifest tenor of the Constitution”?
Thank you.
#2 Ed Brayton
August 15, 2005

jcw wrote:

Have you offered an opinion on the recent Kelo decision by the Supreme Court? If so could you direct me to it? If not do you think this decision goes against the “manifest tenor of the Constitution”?

Yes, I’ve written many times in opposition to the Kelo decision. I’ve also had several radio appearances denouncing the decision and am in the process of attempting to put a referendum on the ballot here in Michigan to insure that it doesn’t happen here even if the court says it’s not disallowed by the Federal constitution.
#3 CPT_Doom
August 15, 2005

The ultimate irony of “Just Us” Sunday was the idea that somehow Dobson, Perkins, DeLay, Schlafly, et.al. are upholding the “religious” foundation of our society. While certainly the Founding Fathers all referred to themselves as Christians, they represented a wide and varied array of religious beliefs. They knew not only the risk of the tyranny of the majority, but of the fight for religious supremacy that had nearly destroyed England on more than one occassion.

So the Founding Fathers proposed the 1st Amendment in the initial group of changes to the Constitution, and the very freedom of religion promised by that Amendment was used when the evangelical/fundamentalist Protestant movement began in the 19th century and gained momentum in the 20th. Were it not for the 1st Amendment, the very religious beliefs behind “Just Us” Sunday could have been illegal.
#4 worm eater
August 15, 2005

jcw- This is Ed’s first post (I believe) on Kelo.

One thing I find frustrating about the “unelected judges” rhetoric is that a) most judges are elected, and b) those that aren’t elected are appointed in a manner that is just as democratic as the manner in which every federal law is passed.
#5 raj
August 15, 2005

This idiocy about judges not being “elected” is pure idiocy. In most states, the judges are elected. And for the federal judiciary, the judges are confirmed (i. e. “elected”) by the Senate.
#6 raj
August 15, 2005

BTW, FP78, and also some subsequent FPs, makes it fairly clear that “judicial power” was meant to include the power to declare acts of the legislative and executive branches unconstitutional. There was no need for the Constitution itself to include the laundry list of things that were understood to be subsumed under the term “judicial power.”
#7 jcw
August 15, 2005

Worm eater, Thanks for the link. After Ed said he had posted on this issue I looked at the homepage again and discovered the search button. I will do some reading tonight.
#8 John
August 15, 2005

“the judges are confirmed (i. e. “elected”) by the Senate.”

Good point raj, I have never thought of it that way before.
#9 Ed Brayton
August 15, 2005

raj wrote:

BTW, FP78, and also some subsequent FPs, makes it fairly clear that “judicial power” was meant to include the power to declare acts of the legislative and executive branches unconstitutional. There was no need for the Constitution itself to include the laundry list of things that were understood to be subsumed under the term “judicial power.”

Absolutely true. There was not a single person among the founders who denied that Article III included judicial review. Some, like Jefferson, opposed giving such power to the courts, but none denied that it was there, and the same is true of the state ratifying conventions. All of them understood that the judicial power included the authority to strike down legislation.
#10 GH
August 15, 2005

‘While certainly the Founding Fathers all referred to themselves as Christians’

Not all of them. Many for sure, but Christian by no means implies anything close to a consensus on religious beliefs.
#11 JY
August 15, 2005

A non-rhetorical question: what does the Constitution ‘mean’ if there is no judicial review? There’s clear language in the Constitution defining how it may be amended, and it is also clear that Congress is empowered to pass laws that aren’t amendments to the Constitution. So if Congress can pass any law (i.e. if there’s no judicial review) then what the heck do we have a process to amend the Constitution for? I realize the wing-nut religious right probably doesn’t bother to answer this question, but how did Jefferson answer it?
#12 surlygrad
August 15, 2005

yes, it’s wonderful when our state judges are elected, and your best shot at winning a case in front of such a judge is either to have contributed to his campaign or to hire a lawyer who did.
#13 Grumpy
August 15, 2005

One of the proposals that came up at the rally was requiring a unanimous vote by the Supreme Court to strike down any act of Congress.

Interesting idea. I’ve been coming at it the other way: why don’t we punish legislators who enact laws which are later found to be unconstitutional? Put a black mark on the ballot when they run for re-election, at least.

Which further gets me thinking: so much animosity at judges who fail to observe the true intent of the Constitution. Where is the ire for legislators who flout their oaths by acting outside their authority? Shouldn’t any acts beyond Congress’ section 8 powers be treated as being just as vile as a flagrant violation of the Bill of Rights?
#14 raj
August 15, 2005

Ed, the Massachusetts judiciary, in 1783 declared slavery in the Commonwealth of Massachusetts to be unconstitutional in view of the MA state constitution that had been ratified three years before.

The MA state judiciary did that.

The idea that the judiciary should not weigh into these legal issues is idiotic in the extreme.

I’ll merely point out: 1783 was four years before the US constitution was ratified. Madison knew what he was writing about.
#15 raj
August 15, 2005

One of the proposals that came up at the rally was requiring a unanimous vote by the Supreme Court to strike down any act of Congress

The federal judiciary doesn’t work like that. Most determinations that congressional acts are unconstitutional do not end up at the US SupCt. Most end up at the district court level, and a few end up at the appeal court level. Few of these cases are accepted by the US SupCt.
#16 John
August 15, 2005

I have to wonder. Would Perkins, Dobson etc. being saying the same thing if we had a Democratic Congress?
#17 Michelangelo
August 15, 2005

Of course the founders did not intend for the courts to have “absolute and final power over us”, but they did intend for the courts to have the power to void legislation that was contrary to the Constitution even if that legislation represented the judgement of the American people.

Thank you, thank you, thank you. Here I was starting to think I was the only person who understood this. I get pretty sick of people on the right going on about “activist judges” and “we have three co-equal branches of government” while at the same time implicity endorsing the tyranny of the majority. “It’s the will of the people!” they cry, even if the will of the people is stupid and oppressive (and unConstitutional).

Of course all that talk ceases when the “activist judge” strikes down some legislative action they dislike…
#18 Chuck
August 17, 2005

Federalist 78 couldn’t be clearer on the right of the courts to judicial review. What is the Constitution if not the supreme law of the land, and what are the courts if they cannot declare inferior laws not consistent with the supreme law void?

Ed’s quote sums it up; a little further, Hamilton says the following:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.