Posted on 09/09/2010 7:54:59 AM PDT by Publius
I just finished Endicott. Thanks again.
Congress is not interested in efficiency.
Tell what I would do if I could: restrict congress to ONE two-month session each year. That would stop all this stupid legislation and curtail their political trials.
One area where the branches of our government are too intertwined is the Executive Branch appointing judges. I’m not sure if at the time the constitution was written there were any popularly elected judges but it is an innovation that would makes some sense.
To get appointed as a judge, the person has to agree to at least some extent to defer to the executive branch. Even our own favorite judge, Scalia, says that the Judicial Brach should defer to the other two branches. This has over time tended towards the executive branch getting more and more power through the power of regulation granted by the legislative branch. This quasi-unconstitutional delegation of legislative authority has been blessed by a USSC that naturally is made of people who defer to the executive branch.
Our founders were clear that not only did they want the powers of the branches to be separate but in order for them to be independent, they had to be separately elected.
I’m not sure if any of the state governments at the time had elected judges but it is one area where the judiciary branch could be made more independent of the others. If the judiciary branch had two of nine members chosen every two years (and the chief justice appointed by the Executive branch), they would provide a nice check on both of the other branches. When was the last time we heard about the meaning of the ninth amendment being discussed in a confirmation hearing? Never, that I can recall. Instead we hear about judges only calling "balls and strikes".
Recently this very issue has come up over gay marriage in Iowa.
link When former USSC justice O’Connor (appointed by Reagan) says judges should be independent, the first question is, independent of who? Well the answer is obvious, i.e. the people. I think most people would agree that they should be independent. The second question is, who should they be dependent on? There is no good answer for that. In fact, thinking about it, I think most would say that being dependent on the people is the least worst dependency.Good enough for me.
What strikes me reading this paper is the concept of negative checks. One of the ongoing conversations people were having at the time was how churches should be structured. Obviously the Episcopalian system had been discredited (Church of England). But there was serious competition between the Presbyterian vs. the Congregationalist styles. In both styles, people were expected to come together and agree upon what they thought was the truth.
However in our constitution, the branches had negative checks on each other. That is, they could only stop the other branches. The Judiciary or the Executive Branch couldn't make the Legislative Branch pass a law. The Legislative Branch required a super majority to override a veto. Neither could overturn a Supreme Court decision. That could only be done by a Constitutional Amendment.
Positive Agreement vs. Negative Disagreement. That idea for protecting liberty has stood the test of time.
“Our Constitution was, and is a radical departure from the existing forms of foreign governments.”
As you point out very well and this Federalist states, our founders also drew upon the experience of the thirteen states, which were much more like countries than what we think of as states today. I’ve read the government under the Articles of Confederation as being more akin to the UN than a real government.
I can’t find the quote tonight but I think it was Madison who said they drew upon eleven times thirteen years of experience in writing the constitution.
Also though, our founders made frequent references to the Polish, English, Roman, Greek, etc. forms of government when deciding what our constitution should look like. They even made obscure references to King Phillip II in making the case for why states should still exist after the National government was formed.
We haven’t created a Monarchy in the Office of the President but in the collective offices of the Federal Bureaucracy.
So, you want the people to interpret the law through the judges they elect?
No, thank you.
Consider the position of the Executive; he’s the enforcement officer (”shall take good care that the laws be faithfully executed”) of our government. It makes good sense that he nominate the judges that will make him look in that constitutional duty, as well as his oath to “preserve, protect and defend the constitution of the United States.”
The public knows little about our true system of government. Handing them the keys to our judicial appointments is like giving a drunk 14 year-0ld the keys to a fully gassed Shelby Mustang on a day that the cops are on strike.
The problem his is not with the design of the system. The problem is the mutation caused by the 17th Amendment, which made the Senate a party favor of the liberals. NO good judge can get through their maze; we almost lost Clarence Thomas to their pathetic histrionics which had nothing to do with constitutional measurements.
The founders warned us of governments of the popular form. George Washington warned us of the dangers of party spirit. Your idea for the election of judges finds a home within both of these dangers.
As Madison said,
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
Letting the President appoint judges has not obliged the government to control itself. Certainly not the Executive Branch. I agree that popularly electing judges has it’s downsides. However I’m not sure the negatives outweigh the positives. It shouldn’t be rejected without consideration. We can trust the American people to get it right, eventually. For instance, I’d like a good public debate on what are and are not natural rights.
Certainly there are some sources that have examined what happens to states when they have popularly elected judges. The founders had eleven years of experience with thirteen constitutions. I think we have had more experience electing judges.
If you cite Madison, perhaps you should agree with his opinion on the appointment of judges as well? Or his opinion on popular governments?
Hmmm. Odd question. Maybe you are trying to be ironic.
No, of course the Executive appointment of judges has not enabled a strong check on the Executive Branch. I think that’s fairly obvious from my previous post.
I’ve read more than a few of the Federalist Papers, notes from the convention (which I find are better sources for understanding the constitution) and many of the Anti-Federalist Papers. What I’ve found is that the problems with the constitution weren’t the objections of the Anti-Federalists that have turned out to be true but where the mechanisms promised by the Federalists didn’t work well enough. Madison and others thought that by appointing judges for life, then that would make them independent enough of the other branches.
They could have had the President appointed by the Legislature but decided not to because, they decided, the Legislature would tend to appoint weak executives. It turns out they may have not gone far enough with that thought. They did not think the Legislature would willingly delegate it’s authority to the Executive through the regulatory process we have today. The founders thought the Legislature would be more possessive of it’s power.
The courts should be more contemptuous of this innovation, laws through executive regulation, which goes against the spirit of the constitution. They aren’t though and I believe it’s because they are people who are sympathetic to the idea of Executive experts making decisions for the legislature. You know, kind of like themselves.
So here is my counter question to you, what natural rights exist that are not enumerated by the constitution? That is, what does the Ninth Amendment cover that isn’t covered elsewhere?
Just to add a reference, here a quote from #51
Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.
Every judge in the state of Texas is elected and that system has served us well IMHO! I would NEVER vote to change to some other method!
In today’s environment it would be FAR better to elect them IMHO.
See post 32 this thread.
I will cite a modern example to support my position.
Robert Bork, the finest legal mind to come along in quite some time, would be sitting on the USSC right now but for the PURELY political circus surrounding his nomination.
Of course you realize that all of this points to what a colossal mistake the 17th amendment has been.
Darn Right! The last chapter of my book is dedicated to the disaster of the 17th Amendment. It’s poisoning of the judiciary is noted well.
Let me give you a short answer before I give you a long answer:
Madison and the founders strived to NOT give the popular voice substantial powers in the government. I not only respect their opinion, I believe it was the ultimate act in wisdom, having drawn their conclusion from much of history.
Back in their days the founders had seen lynch mobs, duels, actual tar and feathering (oh, the days!). They wanted to insulate government from such emotion. The House -alone- was designed to calmly reflect popular opinion, hence its 2 year terms.
Popular opinion can change from minute to minute. Popular opinion does not guide ships, nor pilot aircraft. Popular opinion produces more problems than it solves, because it empowers many elements, the least of which is wisdom.
If we make the constitutional change to elect judges, believe me, the Electoral College is doomed, as may be our entire republican form of government.
We have sort of an inside joke about this here in Texas where our legislature is required by the Constitution to meet for 140 days every two years. Some of us have suggested that the fellow who wrote that into the Constitution was dyslexic and reversed the sentence which should in fact read "for two days every 140 years".
I don't know that I entirely agree with this but will agree that we should be VERY careful in amending the Constitution. Our forefathers failed miserably during ONE presidential administration and we got the two most damaging amendments in our history as a result. The 16th and 17th.
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