The men who wrote the U.S. Constitution dreaded an imperial President, and they feared an unrestrained Congress. Either could destroy the new democratic Republic. So they established an ingenious system of checks and balances to prevent either branch from encroaching too far on the prerogatives of the other. But the Founders considered the judiciary to be inherently the weakest branch of government. They never contemplated what has happened –a willful judiciary that is fencing voters and their elected representatives out of the decision-making process.
Abuse of power by the Supreme Court has long been a serious concern. But the stakes are magnified by the re-election of President Bill Clinton. Mr. Clinton is likely to have the opportunity to nominate one or more members of the High Court. Presumably, he will be inclined to appoint activist Justices whose presence on the Court would aggravate an already untenable situation.
Fortunately, however, members of the U.S. Senate still can prevent our worst fears from being realized. Senators have the right to deny confirmation of activist nominees to the Supreme Court and, for that matter, other courts. Senators should decide that, henceforth, judicial nominees will be required to pledge publicly that they will interpret the Constitution and statutes in accordance with the original intent of the documents and their authors. As the High Court veers further and further from the text and intention of the Constitution, it seems clear that such a promise should be a precondition to confirmation of judicial appointees.
Most Americans paid little attention when Supreme Court Justices first began to substitute their own values for the express provisions of the Constitution. After all, Justices continued to support their decisions by references to the written law even while subverting it. Lately, however, even the pretense that the Court is abiding by the words of the Constitution has worn thin.
“The most important moral, political, and cultural decisions are steadily being removed from democratic control,” Judge Robert Bork points out. “A majority of the court routinely enacts its own preference as the command” of the Constitution.
Professor Russell Hittinger terms the situation a “crisis of legitimacy,” while Charles W. Colson regards recent trends as the “systematic usurpation of ultimate political power by the American judiciary.” Justice Scalia, never one to mince words, is even more direct: “day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize.”
Some will be dismayed by such characterizations. But what else can be said when the Court changes laws from what was intended and written by the authors? Citizens can appeal directly to their elected representatives in state legislatures and Congress; they can request changes in existing laws; if frustrated by elected officials they can seek to replace them next election day. In a democratic society, this is the way the people govern, the way old laws are updated or repealed and new laws enacted.
But when Justices — an unelected elite — arbitrarily substitute their own preferences for the preferences of those who are elected to make laws, they are, in effect, repealing or modifying existing laws or inventing new ones. They become, in George Will’s memorable phrase, “our robed masters.”
Instinctively most of us shrink from thinking this could be true. But innumerable Supreme Court decisions support Professor Hittinger’s contention that “we live today under an altered constitutional regime, where the rules are no longer supplied by a written document but by federal courts defining the powers of government ad hoc.”
The Founding Fathers considered it dangerous to leave each state with complete power to regulate commerce. The nation could not long endure if states could discriminate against one another by erecting tariff barriers. Therefore Article I of the Constitution gives to Congress “the power to regulate commerce . . . among the several states.” The Constitution could have been written to grant Congress complete power to control all commerce including that which affects only one state or the people within a single state. The Founders decided not to write it that way.
However, the Supreme Court consistently ignores the intent of the Constitution in this area. In the strange case of Wickard v. Filburn, the Court upheld federal limits on production of wheat even though the crop was never sold in interstate commerce. In fact, the wheat in question was never sold at all. It was consumed at home by the grower. The Court upheld the conviction of Mr. Filburn for violating the limits. In doing so, a majority of the Justices established the bizarre principle that by planting and harvesting wheat on his own property for home consumption, a farmer could substantially affect interstate commerce. With such a precedent it is hard to imagine any form of commerce — for that matter, any human activity — which might not be deemed to “affect” interstate commerce and therefore be subject to federal regulation. Constitutional limitations on the scope of the national government have been effectively repealed by the Court.
When Congress passed the Civil Rights Act of 1964, it was plainly never intended that that Act would require racial quotas in business, education, etc. The law does not provide for such quotas. Indeed, Senator Hubert Humphrey and other backers of the legislation vehemently denied that such an outcome was possible. But within a few years the courts had implemented precisely the quota regime sponsors said could never result.
FROM their own experience, the Framers of the Constitution feared the establishing of an official religion for Americans. So they drafted a very simple and clear prohibition on the power of Congress to do so. But in Everson v. Board of Education, McCollum v. Board of Education, Engle v. Vitale, and many other cases, the Court has tortured the First Amendment to produce judicial outcomes which the amendment’s authors would have found inconceivable. So prayers and Bibles are banned from public schools; displays of religious symbols are forbidden; postal workers are prohibited from wishing one another “Merry Christmas”; and schoolchildren are taught that the Pilgrims instituted the first Thanksgiving Day because they wished to commemorate their gratitude to . . . the Indians!
In Romer v. Evans, the Court struck down a provision of the Colorado Constitution which prohibited Colorado cities from adopting civil-rights ordinances predicated on sexual preference. In a ruling one scholar termed “indecipherable,” not only did the Court overrule the people of the state, who had adopted the provision in 1992, the Justices also totally ignored their own ruling in the 1986 case of Bowers v. Hardwick. Bowers affirmed that the state of Georgia had the constitutional right to provide criminal penalties for homosexual conduct. But Romer says the state may not deny special rights to those who engage in the very behavior it is permitted to criminalize.
Some applaud these cases. Among our fellow citizens are some who believe the national government should have unlimited power to regulate commerce, that racial quotas are a good idea and school prayers are not. But the main point is not whether one is pleased or distressed by the outcome of specific cases. What is worrisome is the process by which Justices are hijacking our democratic system of government. We can well recall with apprehension the boast of Chief Justice Charles Evans Hughes that “the Constitution is what judges say it is.”
Before the situation gets any worse, senators should put the White House on notice that no judicial nominee — especially for the Supreme Court — will win confirmation unless the nominee will publicly promise to judge cases in accordance with the meaning intended by the authors of the Constitution and of the various statutes. Such notification will, of course, provoke howls of outrage. The Administration, the American Bar Association, and apologists for the welfare state will be apoplectic. Some TV and newspaper pundits — fortunately not all — will decry any effort to strengthen the Senate’s traditional “advice and consent” role in this way.
Insistence on an “original intent” pledge could also delay filling vacancies on various courts. The White House will strongly resist such efforts, and the resulting tensions may make it more difficult for Congress and the President to cooperate on balancing the budget, reforming entitlement programs, etc. If senators were forced to filibuster the confirmation of recalcitrant nominees, it could put a crimp in the whole legislative schedule.
Most senators aren’t likely to have the stomach for such a fight. But those who do may prevail. The public is exceedingly cynical about our judicial system. If the issue is properly framed — as a showdown between democracy and elitism — it is very possible the nation will enthusiastically support efforts to curb the abuse of power by “our robed masters.” If the public gets behind the idea, then, sooner or later, a majority of senators will also. In the meantime, merely raising the issue will have a beneficial effect on the thought life of nominees and sitting judges.
Cynics may wonder if judicial nominees can be counted on to keep their word if they make an original-intent promise. If they do not, then their faithlessness will merely encourage more drastic reforms.
And what if the effort to extract such promises from nominees should initially fail? In that case, the nation nonetheless will owe a debt of gratitude to any senators who raise the issue. By bringing up this fundamental question, senators can give the whole country an opportunity to participate in the decision. Ultimately, the people are supposed to decide such issues. But they can do so only if the question is put squarely before them.