Monday, May 17, 2010

Constitution, Not Court, Is Supreme

Constitution, Not Court, Is Supreme
Ken Connor
Sunday, May 16, 2010

The hype and angst surrounding Elena Kagan's nomination to the highest court of the United States proves the truth of Robert Bork's statement in his book, The Tempting of America, that the Supreme Court is the "trump card" of American politics. Liberals are in full-blown spin mode and conservatives are sharpening their long knives. Why? Because, as Bork explains, judges decide what the Constitution means. "When the Supreme Court invokes the Constitution, whether legitimately or not, as to that issue, the democratic process is at an end." Hence, the importance of judicial philosophy.

Does the nominee believe that the words of the Constitution have objective, propositional meaning, or are they merely empty vessels into which the justices may pour their own meaning? Does the intent of the Framers and their original understanding of the language set forth in the document act as a pole star for the guidance of modern day justices, or is the Constitution a document that is ever changing, evolving with the times like our standards of decency and taste? Will international law shape the outcome of cases that appear before the court or will the history and traditions of the American Republic weigh more heavily in the balance? Does the nominee come to the bench with a political or social agenda, or is she content to let the people and their elected officials set those agendas for the country?

Inquiring minds want to know, because ideas have consequences?especially when they emanate from the Supreme Court.

Judicial philosophy determines how justices rule because the lens through which they look at cases determines what they see. And, in a very real sense, how judges rule determines who rules in America. Will we be a government of, by, and for the people or will we be ruled by judicial oligarchs who confuse power with authority and prefer their own ideas to those of our duly elected legislators?

For those who believe in the democratic process, who believe that the people should govern through elected representatives subject to the constraints of the Constitution, the stakes couldn't be higher. And for those who view "results oriented jurisprudence" as the preferred manner of advancing social change, the stakes are equally high. (After all, the democratic process can be painfully slow, cumbersome and inefficient!)

It remains to be seen how the nomination of Ms. Kagan will play out and how the Senate will respond to her nomination in its role of advice and consent. But the American people should pay close attention to the way the court is being shaped and to the arguments that will be advanced for and against Mr. Obama's nominee. Courts matter, and an imperial judiciary is one that threatens to gnaw away at our democratic foundations.

May God grant us judges who have the humility to understand that in the American system of government, it is our Constitution, not our judiciary, that reigns supreme.
The best branch of government
Paul Jacob
Sunday, May 16, 2010

When ranking the branches of the federal government, “good, better, best” doesn’t quite cut it. Far better an Olbermannian concoction of worse, worser, worst.

But, by logic, the least obnoxious of a bad lot is, still, the superlative “best.” And of the three branches, there is an obvious candidate for that title.

It’s the judiciary.

It’s certainly not Congress. Our federal legislative branch is not merely unpopular, but universally and ethusiastically despised. In the public mind, the House of Representatives represents corruption and self-dealing and a stubborn stupidity about the basics of real life. But rarely, if ever, the public.

The only positive element to our current Congress is that by consistently refusing to act as the first branch of government, as the framers of the Constitution envisioned, it hardly poses a threat to the other branches. But neither does it check those branches.

Instead, Congress increasingly hands away its power and authority to the executive branch to write thousands of powerful regulations to implement and enforce the tens of thousands of pages of vague legislative mandates and assorted gobbledy-gook. Congress’s legislative and linguistic largesse also creates all sorts of tedious legal issues for the judiciary to sort out, boosting the political clout of judges.

But if not Congress, why not the executive branch, beloved by Nixonians then and now?

The question almost answers itself.

The executive was the branch our founders worried about most. America took the first major break from monarchy; the fear of returning to some form of quasi-monarchy was once very real. That fear doesn’t really exist today, of course, just a lot of uneasiness about how doggone hot we frogs find the water.

The ability of families — falling far short of the genius of the Adamses — to erect political dynasties (Bush pater and fils) or nearly so (Clinton pater and mater) suggests that this fear continues to retain some ground in reality.

The executive branch was designed to defend the country and our Constitution, to enforce the laws passed by Congress, unless held unconstitutional by the judicial branch, and to execute government policy that is determined — save for the presidential veto power — wholly by others.

Does that bear any resemblance to the current functioning of our executive branch? Is this president or the last one (or the one before that) someone who sees his role as limited constitutionally?

Of the founders, Alexander Hamilton was the most ardent proponent of a strong executive, but even his argument rested heavily on the need for the executive to check the power of Congress. In Federalist No. 73, Hamilton writes, “It [a strong executive] not only serves as a shield to the executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.”

Hamilton, apparently, was expecting the president to stop the pork-barreling, earmarking, wasteful excesses of Congress. How’s that working out for us?

And what about the very crowded alphabet soup of executive branch agencies? Are Congress or the courts (or even Mr. Obama) effectively managing them? (Just wanted to inject some levity. Cue back to serioso now.)

Yet, it is not entirely by default that the judiciary wins the prize as best branch of the government. The federal judiciary does function in a fashion that Madison and Jefferson might actually recognize.

Sure, the courts churn out bad decisions as regularly as McDonalds sells fries. I’ve vehemently disagreed with my share of federal court rulings, from the controversial 5-4 decision in U.S. Term Limits v. Thornton striking down 23 state term limits laws to the more recent initial upholding of the monstrous McCain-Feingold speech regulation scheme.

Often the very foundations of their judgments are flawed. For instance, the federal courts offset the burdens on our constitutional rights against the “compelling state interest” in advancing government policy. This makes no sense. The most compelling state interest is not to burden our constitutional rights.

But most notably, the judiciary has remained fiercely independent — to our consternation and to our delight — but also, regardless of outcome, in keeping true to its constitutional mission.

The prime reason the federal judiciary has remained so independent? The lifetime tenure of federal judges. As I written before, I support term limits for judges at the state level . . . and for U.S. Supreme Court justices, too (their power is simply too great to allow unlimited lifetime tenure). But at the federal district and appeals levels, lifetime tenure has worked just as intended.

We turn to the federal courts, again and again, to defend our rights to speak, to petition government, to stop local officials from taking our private property, and even to protect us from the federal government reaching into every business and home in the country to command us to purchase health insurance.

Our government has almost entirely escaped the restraints written into our Constitution. That’s why referring to any branch as “best” leaves a bad taste in the mouth. Still, we citizens do fare better before judges than before our own elected representatives.

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