Courts and Congress

America's Unwritten Constitution

William Quirk

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351525510
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

It's often said, confirmed by survey data, that the American people are losing confidence in their government. But the problem may be the reverse--the government has lost confidence in the people. Increasingly the power to make decisions in our democracy has been shifted from Congress to the court system, forcing non-elected officials to make decisions which affect the lives of Americans. In a society which is based on the democratic elections of its officials, this is clearly backwards.

Quirk maintains that what he calls "The Happy Convention, " an informal and unwritten rearrangement of "passing the buck" of government powers, is done to avoid blame and approval ratings becoming lower for a particular person or party. For example, The Happy Convention assigns the power to declare and make war to the President. Congress and the Court play a supporting role--Congress, when requested, gives the President a blank check to use force--the Court throws out any challenges to the legality of the war. Everyone wins if the war avoids disaster. If it turns out badly, the President is held accountable. His ratings fall, reelection is out of the question, congressmen say he lied to them; his Party is likely to lose the next election.

In this way, Quirk reminds us that The Happy Convention is not what the Founders intended for us. For democracy to work properly, the American people have to know what options they have. Courts and Congress argues the case for reestablishing the balance of powers between the courts, the Congress, and the Presidency.

1

Who is to Decide?

There are some rights that are so fundamental that no majority can take them away from any minority, no matter how small or unpopular that minority might be.… And who is better positioned to represent and defend and be the ultimate backstop for rights of individuals and minorities than those who are not directly accountable in the electoral process—namely federal judges?

—ACLU President Nadine Strossen, October 15, 2006—
Debate with Justice Antonin Scalia broadcast on C-SPAN.

It’s a question of who decides; if the people do, fine.

—Justice Scalia’s response to ACLU President Nadine Strossen

We run no risk of returning to the days when a president (responding to this [Supreme] Court’s efforts to protect the Cherokee Indians) might have said “[Chief Justice] John Marshall has made his decision, now let him enforce it.”

—Justice Stephen Breyer dissenting in Bush v. Gore, 531 U.S. 98 157 (2000).

In the end we have to depend on Congress for the effective functioning of our judicial system, and perhaps for any functioning. The primary check on Congress is the political check—the votes of the people. If Congress wants to frustrate the judicial check, our constitutional tradition requires that be made to say so unmistakably, so that the people will understand and the political check can operate.

—Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1399 (1953).

Consent of the Governed—Self-Rule

How should the people be governed and who should do the governing? Should they govern themselves? The Founders did not tell us what to decide—the Constitution fits widely different types of government. They did tell us how to decide things and who was to decide.

Osama bin Laden thinks he’s justified in killing all the Americans he can because of Thomas Jefferson. Osama says, “[T]he American people are the ones who choose their government by way of their own free will…. [They] have the ability and choice to refuse the policies of their government and even to change it if they want.”¹ In essence, Osama doesn’t like the policies of the American government, so he believes this justifies killing American people because the people choose the policies through their elected representatives. Jefferson did establish the consent of the governed in the Declaration of Independence, and responsibility for the government does follow from that. The consent of the governed is part of the country’s essential philosophical premise—its attitude toward power.

Henry Adams wrote in 1870 that the American experiment was unique in its attitude toward power. It opposed power, not simply when it was held by a prince, or by one or a number of assemblies, or by many citizens or a few, but power in the abstract, wherever it existed or by whatever name it was known. Edward Rutledge, for example, told the South Carolina Ratifying Convention: “The very idea of power includes a possibility of doing harm.”² American political theory was unique in this respect. It intended that no supreme, irresistible, uncontrolled authority could exist. Power, it held, could be divided—and the parts set against each other such that the parts could never combine to threaten the unalienable rights.

The Constitution, and democracy, are the political embodiments of the Enlightenment. The Enlightenment emphasized reason and individualism at the expense of authority and tradition. That philosophy, in its political expression, relies on the free play of reason and individual freedom to solve problems. The Founders hated the political expression of power—authority. Power would always be oppressive, said Jefferson, whether it was feudal, religious, or judicial. Madison became a student of the Scottish Enlightenment at Princeton. The Constitution was not just a reaction against British autocracy—it was part of a much larger conception of beliefs about human behavior.

“A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart” is sufficient to persuade us that the “spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create whatever the form of government, a real despotism,”³ said George Washington in his farewell address in 1796. The remedy to despotism was “reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the Guardian of the Public Weal against invasions by the others.”⁴

Washington wrote that if the people desire to modify the distribution of the constitutional powers it should be done by the amendment procedure specified in the Constitution. Washington warned against the Happy Convention: “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.”⁵

A self-governing country would never clear its decisions with any court. Selfrule will not necessarily reach the “right” decision—that is not the point—but the Founders did believe it is self-correcting. And that over time the government fit the people like an old shoe. In a democracy, decisions are reached by the process of inquiry, discussion, and debate. The just powers of government, as Jefferson wrote, rest upon the consent of the governed. The Founders all considered self-rule an experiment. And even today it still is. It is a continuing experiment. “I know no safe depository of the ultimate powers of the society but the people themselves,” Jefferson wrote late in life, “and if we think them not enlightened enough to exercise that control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion.”⁶ As Justice Scalia recently said, “it’s a question of who decides, if the people do, fine.” The people, at least, are not trying to adopt policies that will hurt them.⁷

Self-government is not necessarily good government—it is often foolish and sometimes oppressive. But the faith of the democrat is that its unjust decisions will be corrected if the democratic processes remain open. A parent allows a child to make mistakes, and democracies make plenty, but that’s the way the democracy and the child learn. Democracy is designed ultimately to give you a government as good as the people—but certainly no better. The system is not perfect but it is continually capable of self-improvement. The people, like the child, benefit.

Madison was so committed to republican principles that he opposed the Big State-Little State Compromise, which agreed to give the states an equal vote in the Senate, regardless of population. The Great Compromise was clearly necessary to keep the convention together, but Madison objected: “[I]f the proper foundation of Government was destroyed, by substituting an equality in place of a proportional Representation, no proper superstructure would be raised.”⁸ In all cases where the government is to “act on the people, let the people be represented and the votes be proportional.”⁹ At the Virginia Ratification Convention Madison noted:

I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not we are in a wretched situation. No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people is a chimerical idea.¹⁰

Guardians, to Madison and all the Founders, were out of the question.

Protecting the People from Themselves

John Marshall expressed a contrary view when Jefferson was inaugurated. He wrote to Pinckney that Jefferson was an “absolute terrorist.”¹¹ Marshall and Hamilton believe, with Plato, that the people are too stupid and vicious to govern themselves—that government by, and of, the people will not be for the people. They believe people are their own worst enemy and will be better off if protected by the wise and virtuous who are trained to govern—the Platonic Guardians. These watchful Guardians will decide how much liberty their wards, the people, need at any particular time. And they decide when, and under what circumstances, the country goes to war. The Guardians are purely motivated, but the problem is they know better than you do what is good for you. They will either make your decisions for you or check yours to make sure you aren’t making a mistake. Democracy rests on the simple proposition that the person who wears the shoes knows best where they pinch. The individual is a better judge of his own interest than a guardian. Jefferson wrote to Joseph Priestly: “[C]ircumstances denied to others, but indulged to us, have imposed on us the duty of proving what is the degree of freedom and self-government in which a society may venture to leave its individual members.”¹²

The Imperial Court as Our Guardian

Someone has to have the last word.

—Justice Breyer to Brian Lamb, CNN, November 2006

The Supreme Court justices are our Platonic Guardians. The Court has wide public and academic support for its Guardian role. ACLU President Nadine Strossen believes no one “is better positioned to … defend and be the ultimate backstop for rights … than those who are not directly accountable in the electoral process—namely fe...