Posted on 02/09/2005 7:22:26 AM PST by ZGuy
I. The Internal Crisis
In the next two decades, the U.S. Supreme Court will face three constitutional crises: one will be an internal crisis, another will be national, and the third will be global. Each of these has the potential to significantly erode the Constitutional structure established by our American Founding Fathers.
The internal crisis is how the entire Judicial Branch—including the Court, lower courts, attorneys, judges, law professors and students, and all legal professionals—sees itself. The two leading current views are: strict constructionism and judicial activism.
Strict constructionists believe that the Court should judge solely on the basis of the words written in the U.S. Constitution, the document itself. Strict Constructionism is usually seen as the view of American Conservatives. Judicial Activists, usually associated with American Liberalism, believe that the role of the Court is to do the right thing for the country, for the people whose cases come before it, to interpret the Constitution in such a way that the best thing is done for the nation—whether it is mentioned in the document or not.
Note that these are the lay views of the matter, rather than technical definitions, but that is exactly the center of the crisis. Very few Americans believe the Strict Constructionist view, including few Conservatives. If asked which they think the Court should do, follow the Constitution with exactness or look at all the details and make the best decision given all the facts, almost all Americans will choose the latter.
Indeed, it is exactly what the Founding generation thought, and what the Framers themselves wrote in the document when they said: “the judicial power shall extend to all cases, in law and equity.”[ii] Equity means, and I’m using the definition from the time of the Founders, in fact this comes from Blackstone: “the correction . . . of the law . . . or the extension of the words of the law to cases not expressed, yet coming within the reason of the law. Hence a court of equity . . . is a court which corrects the operation of the literal text of the law, and supplies its defects, by reasonable construction.”[iii]
This brings us to the third view of the role of the Court. It is a minority view, held by a few very patriotic people. It has been totally discredited, yet it deserves to be heard. I don’t agree with this view, but I think we should listen to it. This view is called Original Intent, meaning that the role of the Court should be what the Founders intended it to be. For most people this seems to be the same as Strict Constructionism, but it isn’t. Where the Strict Constructionist looks to the text of the Constitution, the proponent of Original Intent looks to the writings of the framers and all the founding generation. For example, a believer in original intent may often quote Thomas Jefferson about the Constitution. But Thomas Jefferson wasn’t even at the Convention—he was in France at the time, and his first response upon reading the Constitution was negative. It grew on him over time, but that’s the whole point—if you want to find a quote for the Constitution from Jefferson, or against the Constitution from Jefferson, you can.
So how can you ever really show original intent? That is why it has been discredited. But again, shouldn’t the views of the founders be at least considered when making judicial decisions? Almost all Americans would say yes.
Ironically, though, if you do look at the quotes of the founders instead of just reading the text, you have moved out of the Strict Constructionist camp and into the Judicial Activist camp. In other words, if you believe that we should look at the quotes of founders to understand the Constitution, then you have moved into the Judicial Activist camp. So when most lay “Conservatives” argue for Original Intent, they are actually giving support to the Liberal view. This is the crux of the internal crisis. The founders wanted Judges to think, and to act as a court of law (by looking at the written text) and of equity (by using the judge’s best wisdom). In short, the way the current debate is framed, only Judicial Activism can win. A few staunch believers in Strict Construction may get on the Court, though the Robert Bork precedent makes it unlikely, but the majority of the Court will always be Judicial Activists.
Meaning this—the Court will move further and further from the Constitution decision after decision, session after session, year after year, Court after Court. There is absolutely no hope in sight unless drastic change occurs. The Court will take us further and further from our roots when Liberals are in the majority and when Conservatives are in charge—or moderates, environmentalists, militant feminists, extremist militia members, right wing evangelicals, or anyone else. This is because the form is bad. The form as it currently stands promotes Judicial Activism. It has ever since the 17th Amendment passed in 1913. It will only be fixed when something drastic happens, something that forces the Court back into its place, something that changes the form. Which leads us to the national crisis of the Court.
The Constitution established three separate and distinct federal branches—Legislative, Executive and Judicial. Checks were established so that one branch could stop some of the actions of another. Balances were established so that no one branch could do certain things without the cooperation of another. The three branches were distinct, each held the final say on certain powers, and each was equal in status to the other two. Given human nature and the experience of history, the Framers expected each of the three branches to overstep its bounds at times. And when this happened, they expected another branch to exert power to stop the branch that was pushing the limits. They hoped each branch would be self-policing, but they wrote the Constitution with the assumption that no branch would be always be self-disciplined. The crux of the Constitution is this—when one branch steps out of line, two others are there to force it back into line. “Government is force,” many of them wrote, and they followed David Hume and James Madison in pitting force against force, power against power, in turning the power of government against a power-hungry branch of our own government, then foreign aggressors, and finally criminals—in that order.
Modern political commentators often act as if the Court has the final say. It does not. It has the final judicial say only. The President has the final executive say. Congress has the final legislative say. States have the final local say. All the exceptions are written in the Constitution. When checks and balances are exercised, a simple Constitutional Crisis is raised and handled routinely. When a lower branch, such as a state legislature, acts and then is taken to task by a higher power, say the U.S. Supreme Court, a minor Constitutional Crisis occurs. This type of crisis often generates a lot of press, such as the enforced segregation in the Brown v. Board of Education event, the Florida dispute in the 2000 Presidential Election, and the Judge Moore conflict about the ten commandments in the state court house. But again, despite strong feelings and national press, minor crises are usually handled efficiently and without significant long term damage to the democracy.
But sometimes one branch acts and another branch at the same level takes exception—but has no checks or balances to turn to. When this occurs, we have what could be called a major Constitutional Crisis. Because no simple check or balance is available, the offended branch must either turn its head and ignore the usurpation of power, or it must creatively find a way to exert power on the other branch without becoming itself a usurper. If it finds a diplomatic way to do this, such as the War Powers Act and subsequent Congressional votes to “support” military action, then no great crisis occurs. If not, a major Constitutional Crisis has the potential to cause great damage to the American governmental system.
There are four main ways to have a major Constitutional Crisis. First, you could have a Major Crisis level dispute between Congress and the President—the most famous being those of Jefferson and Jackson. Next, between the Congress and the Court. Third, between the States and the Federal Government, which is what caused the Civil War. And finally, between the Court and the President. All have happened during U.S. history, and some have caused more lasting damage than others. And of course you can have mixtures of these types, and subtypes—which I won’t go into today.
My concern is about the fourth type—a major dispute between the Judicial and Executive branches. Note that the role of statesmen is to maintain freedom. In American government, that means maintaining a balance of power between the main branches of government. The Constitution established four equal branches—legislative, executive, judicial, and state. To diagram this, you would place 4 equally sized circles horizontally at the same level. In each circle you would fill in distinct powers, and between the circles you would write checks and balances. In 1789, all four circles would have been on the same level. In comparison, today’s diagram would show three levels, the states at the very bottom, the executive and legislative branches on the next level and roughly equal, and the judiciary above them all. This is judicial supremacy, and it is getting worse.
This situation cannot stand. If it does, Tocqueville will be right that America lost its freedoms through the growth of its laws and courts. No other nation in recorded history would be diagrammed this way, with the courts controlling the other branches. Indeed, in Britain both the legislature and the executive established their own courts, partly to keep an independent judiciary from joining the other side. In Europe, the church started its own courts to avoid being swallowed up by the state judiciary. But no nation has ever turned its power over to a high court—until now.
“So what’s the big concern?” you might be thinking. “At some point the President or Congress just needs to push the Court back into place.” But that is the problem. If we reach a national crises where the Congress, or more likely, the President gets pushed far enough that they push the Court back into place, the natural result will be that whichever branch does the pushing will just end up trading places with the Court—that is, you’ll have the Court and Congress roughly equal on level two and the Executive Branch above both. The real crisis may well occur when the President pushes back, hard, and ends up dominating the other two branches.
As Madison put it, such a solution is worse than the problem—an Imperial Presidency is much worse than Judicial Supremacy. Both are bad government. But monarchy always becomes violent dictatorial tyranny. This is what the Founders sacrificed and died to stop.
Because of the current form, it is almost inevitable that this occur, unless the form changes first. Just consider the President’s tools, in the current form, in dealing with an increasingly Supremacist Court. 1) He can shake his head and wish they would behave. 2) He can stick with politics, appoint Justices that agree with his politics, and hope they vote his way on Roe v. Wade. 3) He can try to stack the Court, like FDR did, by using the bully pulpit to push through an amendment—which is another way of saying he can play politics, but at a bigger scale. 4) He can refuse to appoint anyone, thus dwindling the Court until a future president takes advantage of extra Court seats and fills it back up. 5) He can try to promote an Amendment each time he sees the Court going against what he thinks is right, which is what President Bush did with the proposed Marriage Amendment. All of these are simple or minor level responses. Some of them have merit, and they are in most cases more realistic than dealing with a major level response. But they also do nothing to curb the steady move to a Supremacist Court, nothing to avert the coming Crisis.
Major responses are more challenging. Again, consider the president’s options. 6) The president can just ignore the Court, until the day he has no choice but to do whatever the Court says, when everyone believes that we live in a Technocracy, a nation ruled by legal experts. Or, before we reach that point, he can 7) refuse to enforce a Court decision, some very controversial issue where he’ll have political support, and he can issue Executive Orders to that effect to all federal employees. This would certainly be a national crisis. If the Court let it go, we would have an Imperial President who rules by decree through Executive Order. If the Court pushed back, for example by declaring his orders unconstitutional and ordering federal employees to ignore the President’s Order, then we’d have a nation under the rule of power, not rule of law. This would create a true national crisis—and the result will be bad no matter which side wins. Doubtless Congress would get involved, and the situation would get even more complicated and convoluted. Whatever the result, this would create a global crisis.
America is the one hyper-power that has ever existed, the only one currently in the world. Simply put, this raises the stakes. A Constitutional Crisis isn’t just about American freedom anymore. It is about freedom everywhere.
A destructive national Constitutional Crisis will have global ramifications. Whether Americans, Mexicans, the French, the Chinese or anyone else likes it or not, America has become synonymous with democracy and freedom, expressed in the equation:
America = United States = Democracy = Freedom
I think you can argue why this equation shouldn’t be true, but it is still how most people in the world see it. If the U.S. stumbles, democracy and freedom worldwide will stumble. That doesn’t mean that nobody else will ever be free, but it is likely that the result of American decline will cause centuries of decreased freedom in many places around the world. This experiment in freedom and self government, which the American Founders started is still very much alive, and it remains to be seen if the world will adopt freedom or force as their central way of life. In almost all of world history, we have chosen force. We live in a rare window of opportunity where freedom could be the new focus of the world.
This is the most important question we may face in the 21st Century, and our generation gets to make the choice. The founders of the 19th Century were Washington, Adams and Jefferson, and they gave us a legacy of virtue, freedom, and prosperity. They were followed by the founders of the 20th Century, Marx, Darwin and Nietszche—with their legacy of socialism, empiricism, and humanism. We are just starting to see the effects of the founders of the 21st Century: Freud, Keynes and Ayn Rand, with their legacy of individualism, materialism, and license.
Who will be the founders of the 22nd Century? Are some of them in this room? What will our generation leave as a legacy for our grandchildren?
One thing is sure: Our generation will decide the future of the world just as surely as Washington and Jefferson’s generation choose the future of America. If the inevitable Constitutional Crisis in America goes poorly, many of the children of the world ahead will look to us and justly point their fingers and wonder why we took away their freedoms. Yet we tell our children and ourselves to leave politics to others and to focus on getting a good job. We don’t mean to be evil, but enslaving future generations, by our inaction as well as by our actions, is a very good definition of evil. Let’s not overstate this point, but let’s be honest about it: If that had been Washington’s choice, Jefferson’s, or Adams’, if they had just ignored world needs and focused on making a living, today we would most likely be giving allegiance to Hitler’s successor—or Stalin’s.
I have often said that the best America and the world have to offer is still ahead. I firmly believe this. Yet it will take sacrifice and effective statesmanship in our generation and the next.
The most simple solution to the coming Constitutional Crises is to repeal the cause of Judicial Supremacy and State Decline—the 17th Amendment. If this proves impossible, if no leaders will take up such a cause, another simple solution is to pass a Constitutional Amendment ending the practice of judicial precedent. This would at least put the three federal branches on the same level. The Court would be a truly Supreme authority judging with law and equity, and each decision would apply to only one given case. This is exactly what the Framers intended, and what they wrote in Article III. It is also best for the nation. A president or senator could promote it with the support of congressmen, governors and others.
If no simple solution works, for whatever reason, a minor solution is for the Court to rule that precedent is unconstitutional and that it will no longer be used. This is not as good as the simple solutions, since a later Court could overturn it, but it would be a start.
If neither simple nor minor solutions work, then a major national level crisis will inevitably occur. Some things are just obvious, and it is unwise to wait for scientific evidence to prove them. Chamberlain needed proof to believe that Hitler would invade, but Churchill knew it was obvious. Jefferson and Lincoln hoped that a war between the North and South could be avoided, but along with Tocqueville they knew it would come. They knew because they studied the forms, understood the forms, and saw what the forms predicted. The forms of 2004 make it clear that we are headed for crisis. This is not a popular thing to say—but since when was statesmanship ever popular?
Clearly, in choosing between simple, minor and major solutions, we would all prefer not to live through the pain and upheaval of a major crisis. The root of all three coming crises is found in something relatively simple, the way the modern Judicial Branch views itself. The three modern views of Strict Constructionism, Judicial Activism and Original Intent are each partially correct and partially false. In short, they are all limited—and therefore flawed. There is a huge piece missing. It is missing from most law schools, missing from nearly every courtroom, missing from most textbooks about law, missing from the current dialogue in our nation.
This missing piece is, in fact, the view of the leading Founders and Framers, and it was written right into the text of the Constitution. It is to end the practice of precedent. Yet only a handful of people in the world know about it. Few legal professionals, legislators, governors or executives have given it any serious thought. It is not only discredited but forgotten. Yet it is the correct view and the least painful solution to the coming Judicial Crisis. If major crisis does eventually come, this view will still be the remedy.
The biggest criticism of this view is that it is too idealistic, that we could never get it adopted. That may well be true. But since when did society make any progress by ignoring the ideal? While politicians routinely reject the ideal in favor of the practical, that is not the path of statesmen. The great statesmen of history were men and women who had the wisdom to learn the ideal, and the courage to try to get it adopted. Sometimes they were successful, other times they failed,
But overwhelming odds and a string of failures never stopped a great leader from trying. Those who don’t try do achieve the right thing because it is hard, are lazy. Those who don’t do the right thing because they don’t know about it, are ignorant. Those who don’t try to do the right thing because they will be ridiculed, laughed at, and persecuted, are cowards. Those who don’t try to create the right change because it is impractical, are short sighted. Change may take five generations, but that’s all the more reason we should get busy right away. If we are the first generation, our great grandchildren will have more freedom and happiness if we get to work than if we sit around waiting for what is right to become credible. Besides, in history freedom always gets less practical with each generation, so it will be harder for our grandchildren than for us.
We should be the first generation to get moving in the right direction. There is no virtue in waiting. If we don’t get going in the right direction, we are ignorant, lazy, cowardly or short sighted. If we do, we are statesmen, even if what we start takes generations to succeed.
It is becoming grammatically incorrect in our time of moral relativism to bluntly say that something is “right.” Nevertheless, there is a right way to go. The Court should of course be a court of law (meaning that it sticks to the text), and a court of equity (meaning that justices use their wisdom to make the best decision in each individual case), and it should also decide individual cases, not set precedent. This is the Founding view. I understand that some legal professionals will call this naive, or outdated, or both. They will say that this was decided long since, with Marbury v. Madison and other early cases. But of course they take this position—they have a conflict of interest. The Congress and the Executive are not puppets of the Judiciary—even when they act like it.
Let me illustrate this a different way. When President Bush sent troops to Iraq without a declaration of war from Congress, many people argued that this was unconstitutional. And if you read the Constitution closely, they are right. But almost everybody who said this also seemed to imply that the President was at fault. This is a faulty assessment. The Constitution never says that if a President does something unconstitutional, he should immediately slap his own hand and give himself a scolding. The Framers knew that people in all branches of government would push beyond the Constitutional limits, and they made it the role of the other branches to respond. If a president does something unconstitutional and gets away with it, it’s not his fault. It is the fault of the Congress or the Court. In the case of going to war without a declaration of war, it is the President’s role to protect the nation as he sees fit. It is Congress that didn’t do its Constitutional duty—and they should be held accountable for it. Since it is the people who hold them accountable, it is the people who broke the Constitution. It’s us.
The same will be true in the coming Constitutional Crisis. If we allow ourselves to be ignorant, we deserve what we get. If we allow ourselves to be cowardly and not make a difference because it’s unpopular, we deserve what we get. If we allow ourselves to be short-sighted, to reject real answers because they will take more than one generation to achieve, then we deserve what we get. If we allow ourselves to put making a living before building a world worth living in, then we are lazy and we deserve what we get.
But our grandchildren don’t deserve it. They don’t deserve the pain of slavery, the misery of having everything in their lives controlled, the agony of poverty and disrespect. They don’t deserve the hatred of cruel masters, the scar of the lash, the milder but just as painful broken hearts of families broken, separated and destroyed by overreaching courts.
This may seem over dramatic in our times of freedom, peace and prosperity. And that is exactly why freedom is always lost in history, because by the time it isn’t melodramatic it is real—they are coming to your home and taking your children—and by then it’s too late.
That is precisely what it means to be a statesman: to know what is coming and what to do before it is real.
Now, there is one final criticism of this kind of speech: “If we try our hardest, even if we dedicate our lives to changing things, the people won’t follow because they don’t have the education.” This is true of many of the leaders as well as the masses, of the intelligentsia and also the elite. I agree that this is true.
That is why every great generation of statesmen is preceded by a generation of great teachers and teaching parents who learn what is needed and start the ball rolling in the right direction. We are part of that generation—we are the Benjamin Franklin, John Witherspoon, Benjamin Rush, George Wythe generation. And our choices will determine the future.
So, have you started the ball rolling in your education?
If so, are you rolling fast enough?
If not, I challenge you to get to work.
But beyond my challenge, the statesmen of the past, and the slaves of the past, both of whom see where we are headed, demand that you get to work.
If you are on the right path, going at the right speed, you are a statesman, and the world will yet feel your mission.
It will be the hardest thing you ever do. It will be the best thing you ever do. To liberate the captive, to feed the hungry, to save the sick, to comfort those in pain, to bring freedom and truth to those in slavery and darkness—this is why you were born.
[i] Dr. Oliver DeMille is the Founder and President of George Wythe College (www.gwc.edu), which trains statesmen using the methods that educated Thomas Jefferson, James Madison, John Adams and other American Founders.
[ii] Article III.
[iii] American Dictionary of the English Language. Noah Webster 1828. See “equity.”
Who knows what to do about it?
Re: “…an Imperial Presidency is much worse than Judicial Supremacy. Both are bad government. But monarchy always becomes violent dictatorial tyranny.”
Excuse me but I have a little problem with this. I can think of no monarchy that is guilty of assisting in the murder of 40-50 million children, even the worse of monarchies i.e. Middle Eastern kingdoms. No for true efficiency in the wholesale destruction of their citizens you need a government that “claims” legitimacy from the “people” As Lenin did, Hitler, Mao, Pol Pot and yes I hate to say it even our own government. 40-50 million babies willfully murdered, all possible due to the Courts rulings, Congressional funding and Presidential indifference. This crime is to be laid at the feet of both parties and all branches of government.
Just cut the courts budget, force staff reductions and a wage freeze and they will get in line. There will be no problem with an Imperial Presidency or Congressional oligarchy.
The Abortion issue specifically should have been resolved by direct reference to the words of the Constitution: "No person shall be deprived of life . . . . without due process of law."
The court did not consider either the law or the factual issue of when personhood commences--had it done so, the result in Roe v. Wade would have been different. And that legal and factual controversy should resolve that narrow question at some specific point in the future.
It is not even necessary to overrule Roe; the facts of the next controversy will be different that those presented in Roe because there will be evidence that the unborn child is a "person" within the meaning of the Constitution.
As to the rest of this nonsense, it is simply rehetoric. The real cause of the constitutional problem is that there is a lag time between the assumption of legislative and executive power by Constitutional Republic political forces and use of that power to implement change in the political direction of the Judiciary.
At present, we are still laboring under the constraint of 62 years of Liberal political power and its use to transform the Judiciary. And transformation of the Judiciary by the legislative and executive branch during the ending years of Liberal management was fairly focused. So it will take us a while to reverse the course of things.
And there is a further problem. The Law education process, like the rest of the education industry, is controlled by liberals who are producing more than a reasonable share of liberal lawyers. The law school from which I graduated, which has dropped from #14 to #76 in some public ratings, is a case in point.
The great commercial, contract, and business law professors who were there when I attended have all been replaced by liberals who are teaching rights of the poor and underprivledged rather than the law. Well and good. The reason their ranking has dropped is because the school can no longer get its graduates decent law practice employment. So maybe that process is self policing also.
At the end of the day, a remedy that essentially repealed the common law legal system by removing resort to precident would probably prove worse than the current political crisis--it isn't going to happen either.
2. The power has been understood and used by all commercial & manufacturing Nations as embracing the object of encouraging manufactures. It is believed that not a single exception can be named.
James Madison to Joseph C. Cabell 18 Sept. 1828Writings 9:316--40
Yes. In fact until we stop have a knee-jerk postive reaction every time we hear the word "democracy", and a knee-jerk negative reaction every time we hear "monarchy", the nanny state, Wilsonian imperialism, and supremacy of the courts will be with us.
The rule of precedent has the virtue of making law somewhat predictable. Repealing it will lead to endless lawmaking and therefore even faster growth of government.
How do you avoid the problem of drifting farther and farther away from the Constitutional basis for laws? Unless there is at least some occasional recurrance to original intent, you can easily end up piling error upon error, which is what we seem to have as a result of each new precedent expanding on the last.
The "drifting away from the Constituition" happens because of centralization of politics in Washington. Soon the dogcatchers will be operating on the federal level, and the courts will be tasked to find the jurisprudence of dogcatching in the constitutional penumbras.
The Constitution speaks to the operation of the federal government circa 1800. It is silent on the issues of Social Security, school busing, abortion, school prayer, etc. -- but we want these issues be decided politically and from Washington, so the Supreme Court gets the impossible task to adjudicate what cannot be adjudicated. It is like teaching chemistry out of a textbook on Newton mechanics. We don't have drifting away, we have a ritual of doing constitutional incantations over unrelated subjects.
The crisis of government has to do with overuse of democracy, not with government mechanics.
The precedents can be overruled. No change in the system is required to overrule an obviously injust precedent. Since the Constitution is silent on most issues the courts are told to apply it, removal of the precedent rule would simply destabilize the process to the point of endless thrashing between extremes.
From George Washington's Farewell Address:
"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield. "
FDR did not "use the bully pulpit... to support an amendment" concerning membership in the Court. No amendment was necessary. The Constitution does not specify the number of Justices, and it has been as low as seven and as high as eleven.
This paper states that President Bush took us to war in Iraq without "a declaration of war." To the contrary, Congress has twice declared war, using almost identical language as it did when authorizing President Jefferson to conduct war against the Barbary Pirates.
Concerning the overall constitutional problems facing the nation, the article is generally correct, but far too complicated. The balance is off between the Court and the other two federal branches. The balance is also off between the federal government and the states.
The first problem can be solved by a combination of congressional withdrawals of court jurisdiction. The second problem, however, does require one or more constitutional amendments. Some of those are already in the hopper, but are far removed from active consideration, as yet.
Congressman Billybob
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Agreed. What he is calling "strict constructionism" appears to be "strict textualism".
...for my class reading. Thanks!
bump
A common law system like ours tends, overtime, to converge on the "right" answer.
One can always point out particular judicial holdings that seem irrational or unjust but, in my opinion, the law generally corrects itself and yields the desired outcome.
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