Judicial Dictatorship

William J. Quirk,Randall Bridwell

• Editorial: Routledge
• Año: 2017
• ISBN:
  9781351510424
• Edición: 1
• Categoría: Derecho
• Categoría: Profesión legal

American society has undergone a revolution within a revolution. Until the 1960s, America was a liberal country in the traditional sense of legislative and executive checks and balances. Since then, the Supreme Court has taken on the role of the protector of individual rights against the will of the majority by creating, in a series of decisions, new rights for criminal defendants, atheists, homosexuals, illegal aliens, and others. Repeatedly, on a variety of cases, the Court has overturned the actions of local police or state laws under which local officials are acting. The result, according to Quirk and Birdwell, is freedom for the lawless and oppression for the law abiding. 'Judicial Dictatorship' challenges the status quo, arguing that in many respects the Supreme Court has assumed authority far beyond the original intent of the Founding Fathers. In order to avoid abuse of power, the three branches of the American government were designed to operate under a system of checks and balances. However, this balance has been upset. The Supreme Court has become the ultimate arbiter in the legal system through exercise of the doctrine of judicial review, which allows the court to invalidate any state or federal law it considers inconsistent with the constitution. Supporters of judicial review believe that there has to be a final arbiter of constitutional interpretation, and the Judiciary is the most suitable choice. Opponents, Thomas Jefferson and Abraham Lincoln among them, believed that judicial review assumes the judicial branch is above the other branches, a result the Constitution did not intend. The democratic paradox is that the majority in America agreed to limit its own power. Jefferson believed that the will of the majority must always prevail. His faith in the common man led him to advocate a weak national government, one that derived its power from the people. Alexander Hamilton, often Jefferson's adversary, lacking such faith, feared "the amazing violence and turbulence of the democratic spirit." This led him to believe in a strong national government, a social and economic aristocracy, and finally, judicial review. This conflict has yet to be resolved. 'Judicial Dictatorship' discusses the issue of who will decide if government has gone beyond its proper powers. That issue, in turn, depends on whether the Jeffersonian or Hamiltonian view of the nature of the person prevails. In challenging customary ideological alignments of conservative and liberal doctrine, 'Judicial Dictatorship' will be of interest to students and professionals in law, political scientists, and those interested in U.S. history.

1
Thomas Jefferson’s Opinion of Judicial Review

Cherish therefore the spirit of our people, and keep alive their attention. Do not be too severe upon their errors, but reclaim them by enlightening them. If once they become inattentive to the public affairs, you and I, and Congress, and Assemblies, judges and governors shall all become wolves.

—Thomas Jefferson to Edward Carrington January 16, 1787

Jefferson and the Founders insisted on a written constitution because they believed it was the only safe way to institutionalize majority rule and to protect the people’s liberties. The English constitution was unwritten, and the Americans thought they suffered greatly under it. Their overriding fear was of a despotic central government—like the Crown and the Crown’s judges. They thought the written constitution, by clearly allocating power and rights, would prevent that.

The idea of a written constitution is a good one. England today works well without one, but it has had many centuries to develop, several revolutions, and one King’s head cut off to help it come to an understanding of general principles. America has undoubtedly gotten a lot further faster because we started with a written constitution. It was certainly more efficient, and probably, in view of the experience under the Articles of Confederation, an absolute necessity, to start with an agreed statement of general principles.

But a written constitution works the way the Founders wanted only if there is no judicial review. If there is judicial review the situation reverses and the people are worse off than they would be with an unwritten constitution. Supreme Court justices, where there is no charter, have to justify their actions to a higher authority. If their government is a democracy—such as modern-day England—they must base each ruling on the statutes of Parliament. If the nation is not a democracy—such as feudal England—the judge still must act on behalf of ruling authority—the reigning king or queen. In either case, the judge’s power could be corrected or reversed by the higher authority. Of course it is possible to have a constitution where the judges themselves rule without being subject to any higher authority. This would be a form of absolutism, like an absolute monarchy with more than one ruler, or like the ancient Judges of Israel. In America, under judicial review, the Supreme Court contends that the country’s foundation document authorizes it to be the final interpreter of the meaning of that document. The Court says it is acting on behalf of a higher authority, the constitution, but, as a practical matter, it is not subject to correction or reversal.

When, judges assume a role as the final interpreters of the country’s foundation document, they inextricably intertwine themselves with the document they interpret. The Court’s opinions routinely employ the fiction that, when the justices speak, it is really the Constitution speaking through them. The practical effect is that to challenge the Court, one must appear to challenge the fundamental document itself. The natural reluctance to challenge the Constitution discourages a political response to the Court’s rulings; these rulings are then enforced, whether persuasive or not.

Judicial review presents a critical “Who is to decide?” issue. The Constitution itself does not say who is to interpret it. It creates three separate and equal branches. It does not authorize one branch to bind the other two by its construction. John Marshall thought the Founders intended to give the Court the power to interpret the Constitution for the other branches but had inadvertently failed to write it in. Jefferson thought the Constitution’s silence was exactly what was intended—that each branch had equal and unlimited authority to interpret the Constitution for its own purposes but that no one branch was set over the other two.

Jefferson, as a lawyer, understood that the power to construe or interpret a document is the critical power. The Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” The words will mean what the interpreter wants them to mean. The Constitution, if the Court has the ultimate say, is a Judicial Constitution. Jefferson wrote to Wilson Cary Nicholas on September 7, 1803, “Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction.” Jefferson was familiar with the work of Bishop Hoadly, the seventeenth-century ecclesiastic, who wrote, “Whoever hath an absolute authority to interpret any written or spoken laws, it is He who is truly the Law-Giver to all intents and purposes, and not the person who first wrote or spoke them.” Jefferson wrote to Judge John Tyler in 1810 that the law, in the hands of John Marshall, “is nothing more than an ambiguous text, to be explained by his sophistry into any meaning which may subserve his personal malice.” Judicial review, Jefferson wrote, allows for a Supreme Court, “which from the citadel of the law can turn its guns on those they were meant to defend.” Led by Marshall, the justices, by 1810, had “erected themselves into a political body with the assumed functions of correcting what they deem the errors of the nation.”

A Judicial Constitution, of course, takes on a life apart from the words and a life apart from the people. Jefferson wrote to William Jarvis in 1820:

It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. It is one which would place us under the despotism of an oligarchy.

Justice Joseph Story told Chief Justice Marshall that Jefferson’s letter to Jarvis was publicly displayed in a bookstore and described it as shocking. Jefferson’s purpose, said Story, was “to prostrate the judicial authority and annihilate all public reverence of its dignity.”

Judicial review is incompatible with what we know the Founders did intend—federalism, majority rule, the sovereignty of the individual, the separation of powers and checks and balances. They did intend that each equal branch would check the other—that each had an independent power to determine the meaning of the Constitution. Jefferson believed the Constitution intended concurrent review by each branch rather than judicial review; as he wrote in his First Annual Message to Congress, December 1801: “Our country has thought proper to distribute the power of government among three equal and independent authorities constituting each a check upon one or both of the others in all attempts to impair its constitution.” He continued: “To make each an effectual check it must have a right in cases which arise within the line of its proper function where equally with the others it acts in the last resort and without appeal, to decide on the validity of an act according to its own judgment and uncontrolled by the opinions of any other departments.” Jefferson, of course, recognized that conflict may well arise; that, however, will produce “less mischief than if one is set over the other.” Surely, if the Founders had intended to set one branch over the other they would have said so. Surely, as a matter of democratic theory, Jefferson is right that the elected branches can not be less equal than the judiciary. The elected branches must have rights at least equal with unelected judges to determine the meaning of the constitution. Judicial supremacy, said Jefferson with inexorable logic, could not, over the long run, coexist with democracy.

In a letter to Spencer Roane, Jefferson, then age seventy-five, sharpened the point: it is “an axiom of eternal truth in politics, that whatever power in any government is independent [unchecked], is absolute also: in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes” (emphasis added). Judges who could not be removed, are “the most suspect source of decision in a democratic government.” Judges are “effectually independent of the nation.” Finally, the “most suspect source of decision” remains suspect even if it is made up of the best men in the country: “it is the office of a good judge to enlarge his jurisdiction.”

The trouble with judicial review is the same thing that was wrong with the rule of the American colonies by the British Crown, over whom Americans had no control, and rule by Parliament, within which they had no representation. As far as Americans were concerned, the British constitution was completely nondemocratic. At heart, of course, the Jefferson-Republicans opposed judicial review for the same reason they opposed the English Crown—it prevented self-government. Madison wrote to William Eustis from Montpelier on May 22, 1823:

There has been a deep distinction between the two parties [Republican and Federalist].... The distinction has its origin in the confidence of the former [Republicans] in the capacity of mankind for self-government, and in a distrust of it by the others or by its leaders; and is the key to many of the phenomena presented by our Political History.

Jefferson’s and Madison’s basic theory of divided and checked power makes no sense if judicial review is right. The whole point of their constitutional theory is to prevent absolute—or unchecked—power in government. Jefferson wrote to Spencer Roane, the independent power can be “trusted nowhere but with the people in mass.”

The Supreme Court’s power to say what the Constitution means is called here absolute, or unchecked, because it is beyond the national majority’s control. Article V of the Constitution requires a two-thirds vote of both houses of Congress to propose an amendment to the Constitution, and ratification by three-fourths of the states. The Equal Rights Amendment, despite majority support, failed to be adopted after two tries. Similarly, the Balanced Budget Amendment is still struggling. Both of these amendments would be part of our Constitution if a simple referendum majority were sufficient. The final problem for those who follow the amendment route is that after adoption, the same Court that caused the original grievance is authorized by judicial review to interpret the meaning of the new amendment designed to correct it. This may explain why we have had so few amendments. The process is daunting and the prize at the end of the road may be illusory. “The salient characteristic of the United States constitution,” according to the 1911 Encyclopedia Britannica, is “its formidable apparatus of provisions against change.”

Absolute power is wrong in itself, regardless of whether its holders are well intentioned. Guardians can be smarter than most of the people—and better intentioned—but rule by guardians is not a system for a free people. Jefferson wrote to the Marquis de Lafayette that “the good sense of our people will direct the boat ultimately to its proper point.” Jefferson understood that a democratic people will, at times, make errors, but as he wrote to Edward Carrington on January 16, 1787: “Do not be too severe upon their errors, but reclaim them by enlightening them. If once they become inattentive to the public affairs, you and I, and Congress, and Assemblies, judges and governors shall all become wolves.”

Judicial review, in the hands of a “strict constructionist” judge, is like a loaded gun: dangerous, but not necessarily fatal. The modern Supreme Court justices, however, speak of a “living” constitution. By this, they mean they are free to apply current standards—theirs—to fill in gaps in the Constitution, or even to overrule parts of it.

In recent years, some justices of the Supreme Court have been surprisingly open in their opposition to democracy. Justice William Brennan, on October 12, 1985 told a Georgetown Law School audience he believed capital punishment is “under all circumstances cruel and unusual punishment prohibited by the Eighth Amendment.” This conclusion ignores the Fifth Amendment express provision of the that people will have to answer for capital crimes with appropriate safeguards: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ... nor be deprived of life, liberty or property, without due process of law.” Justice Brennan, on the other hand, believes that capital punishment is “an absolute denial of the executed person’s humanity” and “irreversibly degrading to the very essence of human dignity”:

A punishment must not be so severe as to be utterly and irreversibly degrading to the very essence of human dignity. Death for any crime whatsoever, and under all circumstances, is a truly awesome punishment. The calculated killing of a human being by the state involves, by its very nature, an absolute denial of the executed person’s humanity. The most vile murder does not, in my view, release the state from constitutional restraints on the destruction of human dignity. Yet an executed person has lost the very right to have rights, now or ever.

So has the victim.

Justice Brennan further noted that the “majoritarian process has appeal under some circumstances, but I think ultimately it will not do.” He explained: “Faith in democracy is one thing, blind faith quite another”:

The majoritarian process cannot be expected to rectify claims of minority right that arise as a response to the outcomes of that very majoritarian process.

The majority, Justice Brennan believes, is bent on denying rights to the minority. Justice Brennan told the Georgetown Law School audience what he saw as the inequities of majority rule:

Unabashed enshrinement of majority rule would permit the imposition of a social caste system or wholesale confiscation of property so long as a majority of the authorized legislative body, fairly elected, approved. Our Constitution could not abide such a situation. It is the very purpose of the Constitution and particularly the Bill of Rights—to declare certain values transcendent, beyond the reach of temporary political majorities.

We current justices read the Constitution the only way we can: as twentieth-century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, What do the words mean in our time?

For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone but in the adaptability of its great principles to cope with current problems and current needs. Our Constitution was not intended to preserve a preexisting society but to make a new one.

The Court’s role, as explained by Justice Brennan, to declare “certain values transcendent” and “beyond the reach of temporary political majorities” is not consistent with Jeffersonian democracy. It gives the Court a tremendous amount of power. Would an angel really want that kind of power?

The position of the modern justices is, at best, less than candid. For while expressly claiming wide—indeed overriding—discretion, their only claim to authority is the 1787 document. But that document was written by a world that Justice Brennan tells us “is dead and gone.” The modern justices believe they should apply current standards to the old document. They are a strange group of runaway agents claiming authority their principal never gave them under a document which they feel free to rewrite and reinterpret without any check or balance.

John Marshall, in Marbury v. Madison (1803) said the Constitution is the “fundamental and paramount law of the nation,” and it is “emphatically the province and duty of the judicial department to say what the law is.” The Court added, in Cooper v. Aaron, (1958), that the “federal judiciary is supreme in the exposition of the law of the Constitution” and this is a “permanent and indispensable feature of our constitutional system.” The Court noted that government officials are “solemnly committed by oath” to support the Constitution. Justice William O. Douglas wrote in We, the Judges (1956): “The Judiciary is in a high sense the guardians of the conscience of the people as well as the law of the land.” If the Court keeps the conscience of the people, who keeps the conscience of the Court?

The Court, however, believes, as Yale Professor Alexander Bickel wrote in his book, The Least Dangerous Branch, that it is “empowered to lay down the law of the land, and citizens must accept it uncritically. Whatever the Court lays down is right, even if wrong, because the Court and only the Court speaks in the name of the Constitution.” The Court’s decision necessarily cuts off public debate and the possibility of achieving a democratic consensus. Professor Bickel writes: “The Court has spoken. The Court must be obeyed. There must be good order and peaceable submission to lawful authority.” It is a very volatile mix when the power of coercion is tied to a Court which believes, with Justice Brennan, that its obligation is to find “certain values transcendent” and place them “beyond the reach of temporary political majorities.” And if the people, who are told they must uncritically accept the Court’s decisions, in fact believe the Court has separated itself from the concerns of the common man and is no longer acting in his best interest, then we are in the middle of a constitutional crisis.

The crisis is very well defined. Madison said a republic was a “government which derived all of its powers directly or indirectly from the great body of the people.” Jefferson, as noted earlier, said that “governments are republican in proportion as they embody the will of their people and execute it.” Justice Brennan thinks such blind faith in democracy is misplaced. The will of the people is likely to be oppressive. He believes the Court was established to protect the victims of majority oppression. The argument that the removal of the judicial check would leave our government an unlimited one is, as Professor Commager wrote in Majority Rule and Minority Rights (1943), “almost deliberately malicious.” A large part of American politics is “concerned with reconciling majority and minority will, class hostilities, sectional differences, the divergent interests of producer and consumer, of agriculture and labor, of creditor and debtor, of city and county, of taxpayer and tax beneficiary, of the military and civilian”; in short, the natural checks and balances of democratic politics.

As already noted, judicial review is greatly assisted by the public reluctance to tinker with a Constitution that is viewed with great respect. However the document is interpreted, there is a willingness to accept the interpretation given rather than challenge the infallibility of the document. That attitude toward the Constitution however has not always existed. Jefferson believed that a constitution derives “its obligation from the will of the existing majority” which led to his idea of remaking the constitution every generation. Jefferson thought we would need a revolution or a change of constitution every generation. The constitution was not, he said, the “arc of the covenant, too sacred to be touched.” Jefferson envisioned a constitution that would keep pace with the times, but do so through the will of the people rather than a ruling oligarchy. This fit his philosophy that the “earth belongs to the living.” One generation he wrote, is “as capable as another of taking care of itself, and of ordering its own affairs.” He wrote to Madison in 1789 that “no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.” For this reason, Jefferson believed that the constitution would need changing every generation. Jefferson, when he wrote that governments derive “their just powers from the consent of the governed” meant actual consent. The people’s actual and continuing consent was necessary to the legitimacy of the government.

Jefferson’s idea of remaking the constitution every generation, of course, deprives judicial review of its practical usefulness, that is, that some of the change it brings fits the current generation better than the 1787 Constitution. The strength of Jefferson’s idea is that change will come from the consent of the governed rather than judicial rule.

When the Court declares a “right,” for example, that an atheist has a right to a city hall park free of crèches or a criminal has a right that evidence of a crime be excluded from his trial because it was wrongfully obtained, the Court’s rule is b...