Battling Judicial Tyranny

Published May 24, 2005

Alexander Hamilton thought the judiciary would be the weakest branch of the federal government established by the U.S. Constitution.

On paper, it looks like Hamilton was right. The executive branch commands the army. The legislature controls appropriations and taxes. Both the executive and the legislature have direct links to voters–the ultimate source of sovereignty in a republic. The judiciary, by contrast, is dependent upon the executive for appointment and the Senate for confirmation.

But in 1803, the Supreme Court declared it had the authority to strike down laws incompatible with the Constitution.

As a concept, that isn’t inherently bad. The Constitution is the supreme law of the land. Arduous steps are required to amend it. That wouldn’t make much sense if any law passed by a simple majority in Congress were allowed to stand, even if it contradicted provisions of the Constitution.

Even so, Thomas Jefferson felt that allowing the Court to exercise such authority over the laws “would place us under the despotism of an oligarchy.”

The current battle over judicial vacancies lends credence to Jefferson’s fear. Democrats have been filibustering to block the Senate from voting on some of President George W. Bush’s nominees. Democrats contend this filibuster is essential for preserving Constitutional government. But the filibuster is not an established Constitutional principle. It is a tradition of the Senate, in the past used primarily by southerners to prevent votes on civil rights legislation.

Resort to the historically stained filibuster is evidence of the seriousness of the struggle. Judicial appointments are tremendously important these days–largely because judges have gone well beyond their traditional role of interpreting the law and comparing statutes to the Constitution.

For example, in a recently decided case, Supreme Court Justice Anthony Kennedy asserted, “It is proper that we acknowledge the overwhelming weight of international opinion.” Yet nowhere in the Constitution does it state or even imply that our courts are to use international opinion as a standard for rendering decisions.

One might think lawmakers of both major political parties would be uneasy with the overturning of American laws based on such non-American standards. Today, it might be Republican-passed laws that are disrespected by the court. Tomorrow, it might be Democrat-passed laws.

But both sides of the political aisle have accepted the concept that the courts will always have the last say. That’s why both Democrats and Republicans are focused on who becomes a judge. Right now, the court system is loaded with Democrat appointees. Republicans aim to change that by appointing judges sympathetic to their ideological perspective.

The shift of power to the courts is transforming our government from the republic envisioned by the nation’s founders into something more akin to the Republic envisioned by Plato. Plato was antagonistic to the idea that people could rule themselves. He favored rule by a few philosopher kings. The nine-member Supreme Court looks like the fulfillment of Plato’s vision.

It doesn’t have to be this way. Article III of the Constitution grants Congress the power to regulate the courts. HR 1070, the Constitution Restoration Act, proposes to restrict the courts’ jurisdiction, bar reliance upon foreign laws in rendering decisions, and define the causes for impeachment of judges.

Whether it passes HR 1070 or chooses some other vehicle, Congress needs to reassert the primacy of elected representatives in making the laws of this country. If courts are to overrule statutes they ought to be able to point to the precise clause of the Constitution that invalidates the statute. Congress needs to scrutinize court decisions to ensure this standard is met and take action if it is not. This is our best option to try to ensure that “government of the people, by the people, for the people shall not perish from the Earth.”

John Semmens ([email protected]) is an economist and public policy advisor to The Heartland Institute in Chicago.