The Courts Take Over

[First published May 5, 2005] I usually keep my focus on international events, since what is stake surpasses almost any concern with domestic matters, given that a coup against the American government, or a rise into political power of a fascist or communist, or their ilk, is most improbable. However, some unconstitutional domestic trends that already weigh heavily on present American freedoms and especially what they portend for the future must be addressed.

One of these is the creeping, nonviolent coup d’etat against the American balance of power and check and balances system that has been underway for over fifty years. This is the gradual assumption of unchecked, unbalanced legislative power by the judiciary. The judiciary collectively and increasingly has taken over legislative power—they throw out laws they don’t like; make law state and federal legislatures would oppose, and that is widely unpopular among the people; and defend unconstitutional laws that they like.

Some examples:

The massacre of free speech: The Supreme Court approving the McCain-Feingold in the McConnell v. Federal Election Commission case.

Giving captured foreign terrorists access to American courts: The Supreme Court’s ruling in the Rasul v. Bush and Hamdi v. Rumsfeld cases.

Trumped citizenship—noncitizens have a right to government jobs: The Supreme Court in the Hampton v Mow Sun Wong cases

And so on for giving illegal aliens rights that make them virtual citizens, intervening in elections to decide the outcome, determining who can marry whom, overturning the results of referendums (such for legislative term limits), defining how much of what can be bought and sold and where, breaking up companies because they are successful, deciding who can live and die when on life-support, and approving the most blatant racism and sexism against white male Anglo-Saxons and Asians (as in college admissions), etc.

Is it no wonder that the appointment of judges is now a most important partisan matter, as can well be seen in the Senate battle between Democrats and Republicans over President Bush’s nominees. Who wins will decide how judges will rule, often unconstitutionally, on the most important domestic and political issues of the day. The issues the courts now determine range from marriage, through the death penalty and abortion, to prisoners of war and how a war is waged, leaving aside the itty-bitty cases such as how much fat they will allow in my McDonald’s hamburger.

And yet, these federal court judges, deciding the most major issues for the whole nation, superceding even state courts and constitutions, are only a tiny, unelected group—nine (9!) on the Supreme Court—each with this lifetime, incredible power. The only way to remove them is by impeachment, a clumsy and difficult process, possibly achievable only when a judge rapes a teenager in his courtroom at noon on a weekday.

I suggest three ways of dealing with this growing non-democratic judiciarchy, which are constitutional. One is to restrict what issues the courts can decide to strictly constitutional matters. Second, is to restrict the terms of judges to six years (what I recommend for university faculty plus one-year to correspond to the election cycle), and to make them run for election every six years. I trust the people more than I do the appointment process, which is so easily governed by special interests and political considerations that are hidden, and not transparent, as they have to be in political campaigns.

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Link of Note

Men in Black: How the Supreme Court is Destroying America By Mark Levine

I read the book and highly recommend it as an informative eye opener. The link takes you to Amazon.com and the huge number of reviews of the book by readers. The following is an editorial review by John Moe for Amazon.com (I could not find a review by a constitutional lawyer or professor of law):

Conservative talk radio host, lawyer, and frequent National Review contributor Mark R. Levin comes out firing against the United States Supreme Court in Men in Black, accusing the institution of corrupting the ideals of America’s founding fathers. The court, in Levin’s estimation, pursues an ideology-based activist agenda that oversteps its authority within the government. Levin examines several decisions in the court’s history to illustrate his point, beginning with the landmark Marbury v. Madison case, wherein the court granted itself the power to declare acts of the other branches of government unconstitutional. He devotes later chapters to other key cases culminating in modern issues such as same-sex marriage and the McCain-Feingold campaign finance reform bill.

Like effective attorneys do, Levin packs in copious research material and delivers his points with tremendous vigor, excoriating the justices for instances where he feels strict constitutional constructivism gave way to biased interpretation. But Levin’s definition of “activism” seems inconsistent. In the case of McCain-Feingold, the court declined to rule on a bill already passed by congress and signed by the president, but Levin, who thinks the bill violates the First Amendment, still accuses them of activism even when they were actually passive. To his talk-radio listeners, Levin’s hard-charging style and dire warnings of the court’s direction will strike a resonant tone of alarm, though the hyperbole may be a bit off-putting to the uninitiated. As an attack on the vagaries of decisions rendered by the Supreme Court and on some current justices, Men in Black scores points and will likely lead sympathetic juries to conviction.