A Government of Wolves

Judicial Dictatorship, William J. Quirk & R. Randall Bridwell, Transaction Publishers, 1995, 143 pp.

The federal government is unquestionably in lower repute than at any time since General Beauregard gave the order to open fire on Fort Sumter. Judicial Dictatorship explains why, and does it so thoroughly it will shame even confirmed enemies of federal power into thinking they have been too indulgent with Washington. William Quirk and Randall Bridwell place the blame for increasing federal tyranny squarely on the U.S. Supreme Court — though at the same time they fault American citizens for submitting to fetters that a brave people could throw off at any time.

The heart of the authors’ argument is that by arrogating to itself the right to interpret the Constitution, the Supreme Court has seized decision-making power over every important national question. They point out that this is a form of minority rule that is deeply inimical not only to the original notions of the founders but to the idea of democracy itself.

Judicial Review

A court’s inquiry into the constitutionality of a law is called judicial review. As the authors explain, it “assumes that the president and Congress, the branches responsible to the people, either cannot understand or will not respect the Constitution and the Supreme Court does understand it and will respect it.” Federal judges always know best.

The Constitution itself is silent on who is to be its final arbiter. Thomas Jefferson foresaw that any branch of government that had this right exclusively would soon rule the others: “Whoever hath an absolute authority to interpret any written or spoken laws, it is He who is truly the Law-Giver to all intents and purposes, and not the person who first wrote or spoke them.” Jefferson has been proven right. The Supreme Court routinely invalidates laws passed by elected assemblies and interprets laws in ways never intended by law-makers.

Jefferson thought that each branch should interpret the Constitution for itself. Congress would legislate in accordance with its interpretation but the President could refuse to carry out any law that violated his interpretation. The Supreme Court could also express its views on constitutionality. Jefferson realized that this would cause friction and could hobble government, but that was exactly what he wanted. In his view, every new law eroded the freedom of the people, so it was just as well that legislation should require approval by all three branches of government rather than just one. Of the three, the judiciary was least qualified to be the sole interpreter of the Constitution because it was not answerable to the people.

Equal, contending branches of government were the essence of “checks and balances,” but today there is nothing short of the very cumbersome process of constitutional amendment to check or balance the power of the judiciary. The men who fought England to escape the burdens of monarchy would be astonished to find their descendants now ruled by modern-day equivalents of the Judges of Israel.

The judicial system is supposed to mete out justice to individuals. Its decisions are supposed to affect only the parties to a case. However, by assuming the right to strike down laws and interpret those it does not strike down, the federal judiciary now passes new laws and amends the Constitution at will. As the authors put it, “the opinions of the Supreme Court are the government of the United States.”

Protecting the Minority

Courts that flout majority views claim that their role is to protect the minority. However, the theory that the majority’s rapaciousness must always be checked by wise guardians is openly anti-democratic. If the majority cannot be trusted to deal fairly with the minority, why should it be trusted with anything at all? Moreover, majority rapaciousness has always been more theoretical than real. In Britain, for example, final authority rests with whatever majority Parliament can muster, but where is the tyranny a Supreme Court should suppress?

In democracies there are rarely permanent majorities. Sooner or later everyone finds himself on the wrong side of a vote. Democracy therefore has built-in restraints on the ruthlessness of winners, since they may well be losers when the next question comes up for a vote. Even if they have the power to do so, courts should not lightly set aside a decision that has made its way through a legislature. As Learned Hand put it, “a law which can get itself enacted is almost sure to have behind it a support which is not wholly unreasonable.”

Some of the most obvious judicial tyrannies have had to do with race — courts force Americans to live with, employ, and go to school with people not of their choosing. But as the authors point out, federal judges have struck down majority decisions about everything from abortion and treatment of criminals, to standards for obscenity and education.

In one case, a judge wrote a 169-page opinion that completely overhauled the South Carolina prison system — and he did it singlehandedly. In North Carolina, another judge specified exactly what recreations should be made available to prisoners, including “horseshoes, croquet, badminton [and] paddleball.” He even required annual state tournaments in chess, checkers and backgammon for inmates. One federal judge saw fit to specify the temperature of the hot water in a mental institution, and in another famous case, a Missouri judge ordered an increase in property taxes to pay for a gold-plated school system that was supposed to tempt whites back into public schools.

Questions like this come before the courts because some busybody decides that he does not like the way the elected majority has arranged things. The busybody does not have to do the difficult work of persuading the majority to change its mind. He need only change the minds of a few judges. Once judges have worked their will on something, it is lifted completely out of the normal political process and is beyond the reach of anything short of a reversal on appeal or a Constitutional amendment. A federal judge’s decision to thwart Proposition 187 in California — which would deny welfare and social benefits to illegal aliens — is just another example of the high-handed way judges flout the will of the people.

Sadly, even those who cannot point to any other legitimate suppression of majorities by courts usually defend the decisions that overturned racial segregation. Blacks, we are told, are the one worthy example of a minority legally tyrannized by a democratic majority. Of course, it is now clear not only that the desegregation decisions were catastrophes, but that they paved the way for dozens of other fanciful rulings on sex, disability, citizenship, legal status, and sexual orientation. A terrible error about race spawned other terrible errors.

Winner-take-all

Messrs. Quirk and Bridwell point out that judicial tyranny makes policy-making a ruthless game of winner-take-all. Because a judge does not have to compromise like a legislator seeking a majority, because he need please no one but himself (or, eventually, five Supreme Court justices), a judge can enact laws that virtually no one wants. As the authors explain, no legislature in the country would have passed an equivalent of the Miranda law, which requires police to tell crooks they need not confess. No legislature would have approved of forced busing. Probably not a single state legislature would have granted a blanket right to an abortion, nor would Congress have permitted practicing homosexuals in the military. The authors explain that by assuming dictatorial power, judges destroy democracy: “Our basic reliance on a system for throwing our representatives out does not work if the ones we can throw out do not have the real power,” they write.

Some Supreme Court justices openly revel in the awesome power they were never intended to have. William Brennan was not exaggerating when he once told his law clerks, “With five votes around here you can do anything.” It was also Justice Brennan who justified racial preferences by saying that “in order to treat some persons equally, we must treat them differently.” Justice Brennan has even announced his intention of undermining the death penalty in any way that he can, even though execution is clearly anticipated in the 5th amendment’s reference to “capital” crimes, and is supported by the vast majority of Americans.

How did the majority lose its power? The authors explain that by the 19th century judicial review already had tyrannical potential, but that judges were much more respectful of majorities. Also, in what the authors call “an unholy alliance,” the other branches of the federal government accepted the loss of certain powers to the courts because the courts were vastly increasing the powers of all the branches. Congress could tolerate judicial review if the Supreme Court obligingly ignored the Tenth Amendment and ruled that every act of every American was actually interstate commerce.

Of course, it is the states that have been most mercilessly bound and gagged, as Jefferson and others feared they would be. In the 1830s, Sen. Thomas Hart Benton of Missouri was just one of many who warned that if the courts could interpret the Constitution, they would exert “despotic power” that would lead inexorably to “the annihilation of the States.”

The 14th amendment, passed over a prostrate former Confederacy, officially extended federal power over the states for the first time, but annihilation came later. As late as 1873, in the famous Slaughter-House Cases, the court refused to declare a state law unconstitutional, since it did not think it had the power to act as censor of every state act. By 1937, a bolder court began to interfere directly with local legislation, and the states began a descent into irrelevance that was only briefly checked by Southern resistance to forced integration.

It is the disappearance of any but the national majority that has emasculated the states, just as it has all other smaller jurisdictions. As originally planned, the United States was to be composed of concentric majorities; townships, counties, and states made the decisions that mattered most to most people, and the federal government had little day-to-day business. However, in a democracy, defining the quorum often defines the results. Now that the quorum is national rather than local, people who know nothing about trees tell the people of Oregon how to manage forests, just as people who knew nothing about blacks told Southerners how to manage race relations. Nothing is beyond the reach of federal judges.

Solutions

How can judicial power be curbed? There have been many proposals. Jefferson thought states had the power to ignore federal laws their legislatures found unconstitutional. The federal government could then repeal the law or call a constitutional convention.

Others have suggested that Congress should use the impeachment power much more freely, not just to throw out criminal judges but to remove those who overstep their bounds. Theodore Roosevelt, who despised judicial review, thought that every time the Supreme Court struck down a law or discovered a new “right” the question should be put on the next national ballot for the people to decide. Others have proposed that Congress — or a state — should be able to reestablish any “unconstitutional” law if it can muster a three-fourths majority.

Today, conservatives long for “strict constructionist” judges, who can read the Constitution as a layman would, but Messrs. Quirk and Bridwell point out that the political thinking of individual judges is a small problem compared to the unintended power judges now have, a power “so great that it might corrupt an angel.”

Ultimately, though, tinkering with judicial review will not help a people that has permitted itself to be ruled by the unanswerable will of a few old men and women. In 1944, Learned Hand wrote that “liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”

Jefferson wrote that a government based on force and not on consent is “a government of wolves over sheep.” By routinely overthrowing the traditions of the majority, by ignoring its will and thwarting the results of its deliberations, the judiciary has shown that it does not care about the consent of the governed. But far more amazing than the power lust of our black-robed wolves is how little force it takes to drive the sheep.

Would federal troops invade a state that decided not to enforce a ban on high-capacity handgun magazines, or that told state prisoners they would have to get through the day without croquet? Jefferson wrote that a people’s chains are always self-imposed.

The authors of this book feel strongly about these questions, and their passions sometimes show through their otherwise careful prose. One can almost imagine them leading a corrective operation against the Supreme Court. And what about Thomas Jefferson who, in his first inaugural address, spoke of “a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned”? It is hard to believe that the old revolutionary would not lead a rebellion if he were alive today.