December 18, 2008
A better way to counter judicial activism
Thinking about crime would have improved the GOP's performance this year -- enough, I believe, to have turned defeat into victory. Actually doing something about crime, beyond the hugely burdensome and only marginally effective things Americans are doing already, involves something more. It requires that we shake off several decades' worth of court-sanctioned constraints: all the crime-coddling rulings dreamed up and imposed on us by liberal judicial activists.
When the GOP lost its congressional majority two years ago, I wrote that "the Republican response to judicial activism has been merely to promise the appointment of right-thinking justices who, it is hoped, will reverse the activist rulings, or maybe qualify them or trim them in some way, or at least not inflict more and more of them on us as time goes by. That approach, it should be obvious by now, is too slow, too passive and too uncertain to do any good." Now that the GOP has lost the White House too, I should add that the judicial-appointments approach is not only obviously inadequate, it's no longer available. Now is the time to consider a more effective alternative.
That alternative is to make judicial activism itself unconstitutional.
Yes, I know it's unconstitutional already. Article I, Section 1, says, "All legislative Powers herein granted shall be vested in a Congress of the United States," and that's just one of many clauses being flouted by federal judges who legislate from the bench. Plenty of jurists understand this. Four current Supreme Court justices understand it. Our task is to obtain a declaration of judicial activism's unconstitutionality from the people themselves. Then all nine justices will have to give it up, whether they want to or not.
Even with the Democrats running Washington, Republicans who attack judicial activism directly can expect to gain popular support. And by putting their attack in the form of a constitutional amendment, Republicans can avoid every pitfall of the judicial-appointments approach.
The first pitfall is that it doesn't work. Not one of the activist rulings that have reordered America over the past 50 years has been reversed as a result of new judicial appointments. Even Miranda v. Arizona still stands. The 5-4 "landmark decision" was bitterly contested in its day. Yet in 2000, Miranda was reaffirmed, 7-2, in a ruling by William Rehnquist, a jurist chosen by President Nixon, who was elected in 1968 by voters outraged over the thing Miranda epitomizes: the Warren Court's criminals-first, victims-second inversion of law enforcement priorities.
Its ineffectiveness means the judicial-appointments approach earns the GOP scant gratitude from a public that has yet to receive any relief from the damage wrought by the activist rulings. More than that, it has us leading with our chin. To the public, it always boils down to a fight over abortion. That's an issue on which Americans are closely divided, with a powerful elite stridently defending the activist position and most of the rest of us confused and ambivalent. Even on the pro-life side, people may feel guilty for not doing more to stop what pro-lifers must view as a crime against humanity. In short, where opposition to Miranda involves Americans demanding justice, opposition to Roe v. Wade involves Americans facing justice. It's a tough Roe to hoe.
And in the background stands the landmark that started it all: Brown v. Board of Education. Brown was an activist decision in that it disregarded the segregationist practices of those who wrote and ratified the Fourteenth Amendment, explicitly rejecting any deference to the Amendment's original meaning as a bid to "turn the clock back." And though few Americans today would want to bring segregation back, absent judicial activism there's nothing stopping us if we did. The judicial-appointments approach has no real answer to this. In 1987, Robert Bork tried to argue his way around it by telling his Senate inquisitors that whereas the Fourteenth Amendment's authors may have assumed segregation was consistent with the legal equality they were writing into the Constitution, we now know it is not, and therefore their written principle must outweigh their unwritten assumptions. But one might just as well argue that whereas the Eighth Amendment's authors assumed the death penalty was consistent with their ban on "cruel and unusual punishments," we now know it is not, et cetera. "Evolving standards of decency" can work on one issue as well as another. Anyway, Bork's argument did him little good. His nomination fell before Ted Kennedy's recitation of all the evils "strict construction" would make possible in "Robert Bork's America."
That leads us to yet another pitfall, one harking back past Earl Warren to the New Deal and even earlier. "Strict constructionists" may be intent on freeing Americans from the interference of judges who base their rulings on their own preferences, rather than on the Constitution as originally understood. But the activist side can rightly argue that while Jim Crow would be constitutional under "strict construction," a whole array of modern federal programs and departments -- from Social Security to national parks, disaster relief and even the Air Force -- would be unconstitutional (because they aren't enumerated powers). If a "strict constructionist" court were to start striking down these popular and in many cases essential federal services, the public would find that sort of judicial interference just as obnoxious as the other. The judicial-appointments approach therefore requires supposedly "strict constructionist" nominees to come up with some sidestepping argument to avoid any suggestion that they might cause such a disturbance. Their motive may be to bow to the popular will rather than flout it (as judicial activists love to do), but it still involves a judicial departure from the Constitution's original meaning and thus undermines the "strict constructionist" challenge to the activist position.
A few of us would charge ahead with "strict construction" anyway. Professor Walter Williams, for one, is fond of pointing out how low our federal income tax bill would be if the feds were restricted to only those powers enumerated in the Constitution. But most Americans don't agree. They may like the idea of putting Uncle Sam on a diet, but would they ever vote to amputate his limbs? The beating the GOP took for its role in the 1995 government shutdown gives us the answer to that.
The biggest pitfall of the judicial-appointments approach is that it doesn't even address the main problem with an activist judiciary. It does not reassert We the People's authority over the Constitution. It accepts that the Supreme Court has a right to order Americans around; with the people's only recourse being that occasionally we might have some influence in choosing which new justice is added to the roster of those who give the orders. The Court thus continues to be a law unto itself; its justices free to rule any way they like, and the people are left just wishing and a-hoping that someday it might please the Court to send us in a direction more to our liking.
In contrast to the judicial-appointments approach, a constitutional amendment can immediately restore the people's authority. It can quickly free us from judicial activism's ill effects while ratifying those changes the Court made for us that we should have made for ourselves. It can give proper constitutional authority for much of what the federal government is already doing, even as it releases state and local governments from the extra constitutional constraints the federal courts have imposed on them. Unlike the Human Life Amendment or the Marriage Protection Amendment, it need not prescribe particular policies on particular points; its goal is simply to disable the Court from willfully interfering with the people's right to set those policies.
Call it the Fair Construction Amendment, after a phrase from John Marshall, and fill it with the words in which Marshall, Madison, Jefferson, Hamilton, and Washington decried judicial activism. Then enjoy the fun as debate over the amendment becomes, not a fight between Ted Kennedy and Robert Bork, but a fight between today's Democrats and the Founding Fathers.
If the Republican Party went so far as to embrace such an amendment, results might be very great indeed. Talk about shaking things up! "Progressives" would be aghast, but ordinary Americans might be delighted by the prospect of suddenly regaining their right of self-government on issues ranging from abortion, pornography and gay marriage to reverse discrimination, school prayer and, most importantly, to crime, punishment and the restoration of law and order. And because the adoption of a constitutional amendment requires action not by President Barack Obama but by Congress and the states, this would affect political races up and down the ballot only two years from now. It would throw a monkey wrench into every Democrat's campaign, from top to bottom. We could wind up electing more Republicans than ever. And then, change really would come to Washington.
Whether such events materialize or not, my first point bears repeating: Crime is an issue that unites conservatives with the great majority of their countrymen. The Grand Old Party can win again, and win big, if it can offer people a real hope for real change in how we deal with the violent predators who have brought so much injustice, poverty and grief into American life.
Karl Spence is a journalist living in San Antonio. More information about the Fair Construction Amendment may be found at fairamendment.us