Have the Constitution's checks and balances come unglued?
The First Things website carries a provocative essay by Richard John Neuhaus. The essay explores the contention that, as Anti-Federalists feared in the 1787-89 Constitutional ratification debate, the judiciary has come to be the dominant power in the Federal government.
Without exaggeration, it can be said that most of the activist, anti-traditional measures of government have been judicially imposed. Those have been predominantly aimed at outlawing Judeo-Christian morality, notably Roe v. Wade and measures to banish spiritual religion from education and politics, while encouraging an accelerating descent into the cesspool of sensual gratification.
Such measures were judicially imposed precisely because there never has been sufficient public support for them to gain passage in Congress. Federal judges have simply legislated what, in their personal opinions, the law ought to be.
The effect of judicial activism since the late 1950s has been an unconstitutional establishment of atheistic socialism as the official religion of the United States.
Beginning with Chief Justice John Marshal's Marbury v Madison decision, the courts have increasingly exercised legislative power, overriding Congress. In this regard, see also "Judicial Activism - Summary of Prior Postings."
The following are key excerpts from the First Things essay:
Budziszewski suggests we should pay more attention to the anti-Federalist writer who styled himself as Brutus and was probably New York’s Judge Robert Yates. Brutus claimed that the Federalists, and Madison in particular, were vastly overestimating the way in which their famous “checks and balances” would keep the judiciary from becoming the controlling power in the new political order.
Some readers will remember that there was a great brouhaha when, in November, 1996, First Things published a symposium titled “The End of Democracy?”
A lot of commentators overlooked the question mark. Contributors included Robert Bork, Robert P. George, Hadley Arkes, and Russell Hittinger, and the crisis was described as “the judicial usurpation of politics.” . . . In time, many critics, including Commentary, came around and agreed that, yes, there is something very much like a crisis and, yes, the courts, led by the Supreme Court, have gone a long way toward usurping the political (meaning mainly legislative authority) in this constitutional order.
In "Civilizing Authority," Budziszewski quotes Henry de Bracton, the thirteenth-century English jurist who declared, Lex facit Regem—the law makes the king, not the king the law. The king is supreme within the system but not over the system. Budziszewski then notes the ways in which the anti-Federalist Brutus was prescient in seeing how, far from the courts being checked by the legislative and executive branches, the two latter branches would acquiesce and even collude in the protection and expansion of government power by letting the judiciary have the last word in saying what the Constitution means.
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Dear Mr Brewton, I agree! But if you give a dog a bone, it will chew on it, and it will chew on it, until there is nothing left.
And that has been the effect of the Constitution, and the Bill of Rights. As I have already observed in a Comment on this site (Do the Democrats Really Believe in Democratic Capitalism?), even Jefferson recognized that the Constitution was capable of being a “blank piece of paper”.
Neither the Constitution nor the Bill of Rights is subject to any Principles whatsoever. Much as everyone pays homage to our cherished Rights, they really mean nothing.
This is Justice Scalia on these things we call Rights: “the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee.”
In my book, Freedom v A Tyranny of Rights, I refer to Rights as “procedural expectations”. Oddly, though, I get hammered by those who claim they are only construed so by those Justices who are not ‘strict constructionists’. I doubt that such a charge could be leveled against Justice Scalia.
So, when we give the Courts a “blank piece of paper” we should not be surprised when they use it to make faces at us!!!
Joseph BH McMillan http://www.freedomvrights.com
Comment by Joseph BH McMillan | January 16, 2008
So, the solution is to amend the Constitution to give Congress an override of judicial review. Perhaps something along the lines of a 60% majority vote to override a judicial fiat.
Could the court, then, declare a portion of the Constitution, 'unconstitutional?' I once posed this
question to a law professor, who had no answer.
A tyrant can do whatever they please until natural rights rights are reasserted.
Comment by resourceguy66 | January 16, 2008
I hope the arguments I have made (eg, in the Ten Principles of Freedom articles) do not leave anyone with that impression. The original idea behind the Constitution was that it be defined by clear Principles to which both government and the courts would be subjected. It was not. I am saying that now is the time to do that – although it may already be too late.
Joseph BH McMillan http://www.freedomvrights.conm
Comment by Joseph BH McMillan | January 16, 2008