Radically reform federal courts

The left lives only through the most entrenched and insulated systems of pseudo-aristocratic cadres: the colluding establishment media corporations, the tenured and pampered education mafia, the Washington insider complex of bureaucrats and legislative staffers, and the federal judicial system.  The most dangerous and destructive of these is the last.

The Constitution created a system of checks and balances, but this system largely rested on robust sovereign states and a Congress that held most federal power.  Both of these bulwarks against a relapse to that sort of arrogant and remote rule that prompted our Revolution have been gutted so that neither exercises much power today at all. 

Congress has "delegated" nearly all its legislative power to regulatory agencies, cabinet secretaries, and other arms of the executive branch.  The vast majority of its power to appropriate has been surrendered to entitlement programs and other vast unbudgeted expenditures.  If Congress vanished tomorrow, Washington would not notice it for years.

This is bad, but it would not be nearly as bad if the president exercised those powers lost by Congress.  He is, after all, chosen by the electors of the states, who are themselves chosen by the voters of those states.  The people still rule the government, although it would be much better if the people ruled through their state governments or their members of Congress.

Federal courts, on the other hand, are utterly independent of any check or control when these courts do what they have been doing for six decades and simply reading into the Constitution or federal statutes exactly what the judges of the federal bench desire.  The conservative response to this has been to appoint "strict constructionists" to the federal bench, especially the Supreme Court, but this has failed.

"Power corrupts.  Absolute power corrupts absolutely."  When we allow federal judges to exercise powers greater than we would give to constitutional monarchs, then we ought not to be surprised to learn that all of these judges – even the ones who agree with us – begin to see themselves as rightful rulers of a subject people – namely, us.  Worse, the whole ghastly retinue of Washington lawyers has a vested interest in judges, rather than legislators, making laws.

There is not and has never been a good reason for federal courts, including the Supreme Court, to interpret the Constitution.  The language of that document is as clear as men could make it – indeed, that was the beauty of the Constitution – and there is not the slightest reason to believe that a Supreme Court justice understands that language better than a senator or congressman. 

Until the powers of federal courts are radically reduced (i.e., returned to the powers envisioned in the Constitution), nothing will really change.  Republicans in Congress can and ought to undertake this grand reform.  Taming the federal bench will require political courage, but it is vital, and it can be done with three specific steps.

First, strip from all federal courts the power to enjoin state or federal governments and place that power back where it was for the first century of our nation: with state courts alone (except for ultimate appeals to the Supreme Court).  This would have two good effects: it would prevent unelected judges from exercising arbitrary power, and it would restore a large measure of states' rights.

Second, House Republicans should impeach any federal judge who assumes more powers than the Constitution allows – that is, violates his oath of office.  Impeachment by the House requires only a majority.  Trial by the Senate would probably fail to gain the two-thirds majority needed; the trial itself, however, would force these judges to be defendants accused of violating the Constitution.  It would send a shot across the bow of these rogue jurists and reassert the powers of Congress to control bad judges.

Third, Congress by joint resolution should state directly that federal judges lack the power to order the president or Congress to do or not do anything and that the federal bench has no monopoly on reading the Constitution.  This is not as radical as it sounds.  Andrew Jackson famously responded to attempts by the Supreme Court to restrain him by stating of the chief justice, "John Marshall has made his decision; now let him enforce it."  In other words, as president, Jackson asserted the right to ignore the Supreme Court when it behaved incorrectly.

The need to radically reform the federal bench has never been clearer, and nothing is more important.

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