Long live the imperial judiciary!
As the country's political system became more democratic, elites turned to the courts to enact their political agenda. That's the thesis of Robert Lowry Clinton, political science chair at Southern Illinois University.
For years, I have been working on the problem of judicial supremacy—the idea that the courts have ultimate control of the Constitution. Judicial supremacy is a problem because the explanations offered by those who wish to justify it really don’t work. The Constitution certainly doesn’t justify it. Neither does Marbury v. Madison—the case usually trotted out for its support.
A few months ago, I was attending a presentation by one of my colleagues on American elections. He reported that it was now settled among experts that American voters were “idiots.” After some reflection, I have concluded that here lies the real answer. The true explanation for judicial supremacy is elitism, pure and simple.
He looks at how Woodrow Wilson helped to change the perception of the Constitution as the benchmark by which we judge the courts. Now the courts judge the fitness of the constitution to serve the needs of the country -- at least the needs of the moment. (Side note: Amazing both how awful a president Wilson was and how many schools, bridges, roads, etc. are named after him.)
Following Wilson’s view of constitutional interpretation, the modern progressive elites who champion “living constitutionalism” want the courts to lead us into a brave new world, imposing a constitutional order on American society based on values and beliefs that are alien to those held by the Founding Fathers (and by the majority of Americans today). These beliefs range from atheism and materialism to scientism and secularism. If they succeed, then the Founders’ Constitution is dead.
The author brings up the same-sex marriage example, which is perfect. The elites, unable to convince the voters in 30-odd states, simply moved their game to the courts. Judge Vaughn Walker discovers a redefinition of marriage -- hiding there in plain sight for how many years! -- in . . . the Constitution.
Clinton argues that the Framers intended to balance elitism and democracy against one another and that judicial supremacy destroys this carefully contrived balanced by handing decisions over to one branch. That under the "living" constitution idea, the constitutional amendment process goes from being something involving the widest possible participation of the people over to one of the tiniest committees on the planet -- nine justices appointed for life.
And it's even worse than that, of course, since it really comes down to just one justice on the court.
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Aug '10
Re: Long live the imperial judiciary!
No, really, it makes perfect sense. (There's also a teaching fellowship named after him that keeps on appearing in my side-bar ads for some reason... annoys me.)
Jun '10
Re: Long live the imperial judiciary!
2008 notwithstanding, I still believe in the "wisdom of the crowd."
May '10
Re: Long live the imperial judiciary!
Mollie Hemingway: That under the "living" constitution idea, the constitutional amendment process goes from being something involving the widest possible participation of the people over to one of the tiniest committees on the planet -- nine justices appointed for life.
And it's even worse than that, of course, since it really comes down to just one justice on the court.
This is intentional. That way the progressives don't have to deal with the seething, raging, Neanderthal public who, even if the brilliance and foresight of the progressives could be described by mere human words, wouldn't understand it.
Edited on Oct 8, 2010 at 10:09amJun '10
Re: Long live the imperial judiciary!
I always thought that the constitution provided for three EQUAL branches of government. One has to wonder, if the people decided that the courts are breaking the law, which is ultimately our constitution, then why should the people abide by the courts' decisions? Being ruled by a lawless bunch of judges will ultimately destroy the civil society. Yes or no?
Sep '10
Re: Long live the imperial judiciary!
Judicial supremacy is simply a symptom of the political branches outsourcing making difficult policy decisions to the judges. Congress at any time could smack down the Federal judiciary by impeaching and removing hundres of judges, or even more easily eliminate their circuits and put the judges out to pasture (as Jefferson and Madison (as SecState) did when the Democrats, ironically, won their first Presidency). As the judges do pay attention to which way the wind blows when it blow hard enough, a signal of this sort indicating that the era of penumbras and emmanations was over would work. The fact that this hasn't been done makes obvious this outsourcing of policy to the judiciary.
A medium-term goal of all those that value our real Constitution (and not the abominations inflicted on us by Wilson and his political children) must be to regain control over the federal judiciary and again assert the proper relationship between the Constitution and the judges where the former controls the latter.
Our real Constitution is one of republic ruled by law, and not by men. Right now we largely live under the opposite, and our Founders would IMHO condemn this state as tyrannical.
Jul '10
Re: Long live the imperial judiciary!
Nonsense, I say!
The Founders saw the Senate as the elitist institution. It was assumed that the representatives of the states would be the landed or commercial elite. The Supreme Court would be the rather boring technocratic law class.
Idiots!
Re: Long live the imperial judiciary!
Patrick Shanahan: Nonsense, I say!
The Founders saw the Senate as the elitist institution. It was assumed that the representatives of the states would be the landed or commercial elite. The Supreme Court would be the rather boring technocratic law class.
Idiots! · Oct 8 at 7:05pm
Right -- that was how it was supposed to be. But things changed with the direct election of Senators . . .