The Imperial Court
News outlets, even those with legendary liberal bias such as NPR consistently refer to the Supreme Court these days as the Imperial Court. The clear implication is that the SC is governing by edict like a Roman Emperor. The Democrats support this except for when they oppose it and the Republicans are opposed to it.
It is worthwhile to quote J.S.Mill on the Supreme Court from his essay on Representative Government,
“The eminently beneficial working of so singular a provision is probably, as M. de Tocqueville remarks, in a great measure attributable to the peculiarity inherent in a Court of justice acting as such- namely, that it does not declare the law eo nomine and in the abstract, but waits until a case between man and man is brought before it judicially involving the point in dispute: from which arises the happy effect that its declarations are not made in a very early stage of the controversy; that much popular discussion usually precedes them; that the Court decides after hearing the point fully argued on both sides by lawyers of reputation; decides only as much of the question at a time as is required by the case before it, and its decision, instead of being volunteered for political purposes, is drawn from it by the duty which it cannot refuse to fulfil, of dispensing justice impartially between adverse litigants. Even these grounds of confidence would not have sufficed to produce the respectful submission with which all authorities have yielded to the decisions of the Supreme Court on the interpretation of the Constitution, were it not that complete reliance has been felt, not only on the intellectual pre-eminence of the judges composing that exalted tribunal, but on their entire superiority over either private or sectional partialities. This reliance has been in the main justified; but there is nothing which more vitally imports the American people than to guard with the most watchful solicitude against everything which has the remotest tendency to produce deterioration in the quality of this great national institution. The confidence on which depends the stability of federal institutions was for the first time impaired by the judgment declaring slavery to be of common right, and consequently lawful in the Territories while not yet constituted as States, even against the will of a majority of their inhabitants. This memorable decision has probably done more than anything else to bring the sectional division to the crisis which has issued in civil war. The main pillar of the American Constitution is scarcely strong enough to bear many more such shocks.”
This illuminates the extreme danger in allowing the Supreme Court to become a vehicle of one party or another.
Are the laws in our country supposed to be made by the People? Are they supposed to be made by the Representatives of the People? Are they supposed to be made by a small elite group of political appointees with lifetime tenure immune to recall by the People?
The answer is that they are supposed to be made by the People first as the People adopt the Constitution which is the expression of their united will. After this they are to be made by the elected Representatives of the People. To safeguard against the abuse of this lawmaking power, a small group of political appointees made independent of politics by lifetime tenure is supposed to make sure that the Representatives do not violate the peoples will as expressed in the Constitution unless they first properly and legally amend said Constitution.
This is the plan of our government as explicitly developed in the Federalist Papers. The entire defense of the Federal Judiciary with it’s lifetime tenure was that they would keep the Representatives from trampling on the will of the People as represented by the Constitution.
The People are the ultimate authority. The Representatives their current and direct voice. The Constitution the embodiment of their will and choice in government.
“On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act.” The Federalist Paper number 39, Madison.
There are numerous passages in the Federalist Papers which suggest that the Supreme Court will rule on the Constitutionality of laws passed by the Congress. This will act as a check to prevent possible cabals or temporary impulses from overriding the real will of the People as expressed in the Constitution.
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” The Federalist Papers number 78, Hamilton.
“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” The Federalist Papers number 78, Hamilton.
“It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” The Federalist Papers, number 78, Hamilton.
The Bill of Rights is a strong expression of this. George Washington in his first inaugural address, addresses the attention of the Congress to only one issue. He urges them to rapidly and wisely create a Bill of Rights. The Ship of State was foundering as he spoke. Years of weak central government under the Articles of Confederation had produced a time of national emergency. Foreign debts were unpaid. Treaties were being ignored by foreign powers who laughed at the weak former colonies. The economy was faltering. Yet, in all of this, there was only one issue which President Washington chose to mention in his inaugural address. The Congress must create a Bill of Rights.
“Besides the ordinary objects submitted to your care, it will remain with your judgment to decide how far an exercise of the occasional power delegated by the fifth article of the Constitution is rendered expedient at the present juncture by the nature of objections which have been urged against the system, or by the degree of inquietude which has given birth to them. Instead of undertaking particular recommendations on this subject, in which I could be guided by no lights derived from official opportunities, I shall again give way to my entire confidence in your discernment and pursuit of the public good; for I assure myself that whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience, a reverence for the characteristic rights of freemen and a regard for the public harmony will sufficiently influence your deliberations on the question how far the former can be impregnably fortified or the latter be safely and advantageously promoted.” Washington, “First Inaugural Address”
This was the response of the Constitutional Government to the debates over ratification. The People desired a Bill of Rights, the People must have a Bill of Rights. All other matters foreign and domestic were of less importance than the overriding will of the People in this one matter.
So the first ten amendments to the Constitution were written and became Constitutional Law. The first test of the new Government included a test of its ability to amend its own Constitution to meet the Will of the People. It passed that test. This is the truly legitimate way in which the nature of our Government can be amended. If an amendment cannot be passed and the issue does not meet Constitutional standards, it is not truly the will of the People of the United States.
This cumbersome procedure frustrates reformers and idealists. They want a ‘better’ way. One more amenable to the intellectual superiors of the ignorant people. One more amenable to the sophisticated arguments of reasonable and educated persons. (Such as those used to justify legalizing abortion.) One which a small minority can use to manipulate and change the government to fit their personal prejudices.
The Federal Judiciary and in particular the Supreme Court offers just such a loophole in the Law. As the final authority on what the Law means, they can change it if they choose to create new law instead of interpreting existing law. This takes the power of making laws away from those ignorant nasty people or their Congressional Representatives and puts it in the hand of a nice intellectual elite.
This is directly contrary to the expectations of the Framers and took centuries to develop,
“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” The Federalist Papers number 78, Hamilton.
Custom has made the SC a final and highly respected arbiter of national issues. Abuse of its powers can destroy custom and its power.
It is a matter of wonderful political irony that the party in the US today most in love with divorcing the power of making law from the people and putting it into the hands of a small intellectual elite is called the Democratic Party.
Roe vs. Wade is the flagship example of this kind of Judicial behavior. It has inspired an entire generation of Judges at all levels to begin to just ignore the law and decide every legal case on the basis of their personal feelings. In this sense, a crooked decision has inspired crookedness throughout the Federal Judiciary as Confucius and Aristotle maintained would happen. This in turn leads to dogfights over which dog is bigger, and has even led to State Supreme Courts challenging and ignoring the US Supreme Court. This has resulted in rule by edict, not rule by law. Increasingly it is impossible to know if you are breaking the law or not. This violates the right to Due Process discussed previously dating all the way back to the Viziers of Egypt.
With the two party system, each party must cater in judicial appointments to a small core membership. These hardliners hold extreme positions on extreme issues that do not command widespread public support. These hardliners want laws that support their positions, regardless of that silly Constitution and the silly ideas of the ignorant People. With a Supreme Court which ignores the existing law and makes law on the basis of the ideological doctrines of the party that appointed it, 5 or 10% of the population gets the power to force its moral agenda down the throats of the other 90 or 95% of the People.
This is what has happened to the Federal Judiciary in the US today. It has become the firestorm issue in political appointments. Integrity, honor, legal knowledge, academic standing are not important issues in appointing federal judges. Only allegiance to the party line. Legal decisions are being made not on the basis of laws passed by the people or their representatives or the Constitution, but on the basis of political ideologies held by fanatic fringe groups which make up the core of the political parties. Remember what Mr. Mill had to say,
“This reliance has been in the main justified; but there is nothing which more vitally imports the American people than to guard with the most watchful solicitude against everything which has the remotest tendency to produce deterioration in the quality of this great national institution.”
This has paralyzed the appointment system and made the Supreme Court and Federal Judiciary into a monster which would be roundly condemned by the Founding Fathers. This paralysis is possible only because of the Two Party System. The Founding Fathers roundly condemned the Two Party System. They considered it to be one of the fundamental evils of the British system that they wanted to avoid. The Constitution was not designed or intended to function in conjunction with the Two Party System.
One way of approaching this problem is to attempt to weaken the stranglehold that the two party system has on the appointment of Federal Judges so that the standards will become more professional and less political. Since the Senate ratifies the appointments of Judges to the Federal Judiciary, reforming the means of choosing the Senate will reform the selection process of the Federal Judiciary.