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Reagan, Christie, and Those Unelected Elites

By on 6.10.11 @ 6:08AM

Gov. Chris Christie has made clear to the New Jersey supreme court that the Time for Choosing has arrived.

As he transitioned away from New Deal liberalism to Goldwater conservatism in the 1950s, Ronald Reagan began to speak out against “the enemy within” in a series of powerful speeches that celebrated America’s founding principles. In his commencement address at William Woods College in 1952, and at Eureka College, his alma matter, in 1957, the future president described America as a divinely inspired, historically distinct country.

This idea of “American exceptionalism” also figured into the 1964  “Time for Choosing” speech, Reagan delivered on behalf of Sen. Barry Goldwater of Arizona, the Republican candidate for president. But the 1964 speech included an additional component that foresaw the dangers of a renegade judiciary; one that willingly bypasses constitutional restraints. The conflict between Gov. Chris Christie of New Jersey and his state’s Supreme Court interconnects with the anti-constitutional impulses of unelected elites that Reagan foresaw during the Goldwater campaign.

Even as he remained focused on the external threat of Soviet communism during the Goldwater campaign, Reagan also felt a special need to uplift the political system created in 1776 and to defend it against a growing domestic menace. George Nash, a historian and author, who has written extensively on the modern conservative movement, has carefully traced Reagan’s political journey.

Nash, who is also a senior fellow with the Russell Kirk Center for Cultural Renewal, discussed Reagan’s contributions to the concept of American exceptionalism and the timeless appeal of his message during a symposium on the Reagan presidency held earlier this year at Regent University in Virginia Beach.

“He [Reagan] began to speak about the enemy within, the assault at home from those who are either wittingly or unwittingly steering us toward a bureaucratized all powerful state in which government would be a big brother and the individual would be absolutely powerless,” Nash explained in his presentation. “In speech after speech, he railed at the growing complexity, profligacy and unaccountability of centralized government.”

The notion of self-government that was so central to American Revolution was in jeopardy and could be lost to centralized planners, Reagan warned in his 1964 speech.

“If we lose freedom here, there’s no place to escape to,” he said. “This is the last stand on earth. And this idea that government is beholden to the people, that it has no other source of power except the sovereign people, is still the newest and the most unique idea in all the long history of man’s relation to man. This is the issue of this election: Whether we believe in our capacity for self-government or whether we abandon the American Revolution and confess that a little intellectual elite in a far-distant capitol can plan our lives for us better than we can plan them ourselves.”

Unfortunately, New Jersey has succumbed to the power and influence of its unelected judiciary; the very sort of entity that Reagan identified as a potentially lethal threat to the American constitutional order. Despite its own rich revolutionary history, the state has followed a progressive trajectory over the past few decades divorced from constitutional government. As much as contemporary residents relish and revere the “Spirit of 1776,” they actually inhabit a world that was reshaped by the N.J. Supreme Court with a series of rulings on education policy that reach back to Robinson v. Cahill in 1973. That would be the year self-government died in the Garden State.

AT A TIME WHEN the nation is commemorating the 100th anniversary of the former president’s birthday, Christie has very appropriately invoked Reaganesque language in an effort to restore constitutional checks and balances for the benefit of his overtaxed, underrepresented constituents. Christie explicitly campaigned on reforming the N.J. Supreme Court, which has a long history of intruding upon the policy-making authority of the executive and legislative branches. Before the end of his first term, Christie will get that chance. Up until now, elected officials in both parties have permitted the judiciary to interject itself into the public arena at taxpayer expense without a vigorous response.

“We’ve had an unholy alliance of Republicans and Democrats in this state who have the same belief in a progressive interpretation of the constitution that ignores fixed meanings,” Assemblyman Michael Patrick Carroll laments. “This goes a long way toward explaining where we are right now. Judges have consistently substituted their own public policy views for the actual language of the constitution.” An outspoken conservative, Carroll has been sharply critical of his own Republican governors for selecting activist judges who have appointed themselves as the high authority on policy matters that fall outside of the court’s purview.

At issue now, is the latest Abbott v. Burke ruling, which orders the governor and state lawmakers to spend an additional $500 million on schools. In a 3-2 decision, the N.J. Supreme Court has once again declared that it alone has the final say in determining what level of funding satisfies the constitution’s requirement of a “through and efficient” education system. The Newark-based Education Law Center, which brought the suit, argued for a larger restoration of funding to the tune of $1.7 million for the 205 school districts that were not sufficiently funded in their estimation. In a separate concurring opinion, Associate Justice Barry Albin expressed his preference for this larger settlement. But in the end, the court narrowed its ruling to cover just the 31 Abbott districts that were part of the original case in 1985. The dissenting justices rebuked the court for further burdening the state’s already beleaguered taxpayers. But what’s really at issue here is a long overdue effort on the part of a tenacious chief executive to restore the court to its proper station in constitutional orbit. Unlike his predecessors, Gov. Christie has been willing to call out unelected judges who have coerced their overpriced, ineffectual policy preferences on the public and usurped the power to tax and spend from elected lawmakers.

The N.J. Supreme Court justices do not see themselves as a co-equal branch of government, but as a superior branch of government, Gov. Christie explained during a town hall meeting in Robbinsville, N.J. in June last year.

“Now this [Abbott v. Burke] has been an experiment that has been going on for 20 plus years and yet we don’t see much improvement in our public schools,” Christie said. “So, the Supreme Court’s theory that if you put more money in it [the schools] it’s just going to get better by magic has proven to be wrong. And, so, if people wonder why I want to change the Supreme Court, it’s because I don’t have the flexibility to change the school funding formula…They’ve taken the power out of hands of the legislature to make this judgment and out of the hands of the governor and the courts are making it. We’ll that’s wrong, if judges want to legislate, they should run for the legislature.”

Under the N.J. Constitution ratified in 1947, all lower-court judges, and Supreme Court justices, are appointed by the governor. After a period of seven years, they become eligible for reappointment by the governor with tenure until mandatory retirement at 70. The N.J. high court is comprised of seven members, including a chief justice and six associated justices. At present, the court includes four Democrats, two Republicans and one independent.

When Associate Justice John Wallace petitioned for reappointment last year, Christie took the opportunity to deliver on his campaign pledge to remake the judiciary and settled on an alternative nominee. It was the first time in 63 years that a N.J. Supreme Court judge seeking tenure was denied. Wallace had been part of the problem, Christie explained in his talk. Senate President Stephen Sweeny blocked confirmation hearings for Anne Patterson, Christie’s nominee, for a full year. They reached a compromise in May when Sweeney agreed to have Patterson replace Rivera-Soto instead, who is stepping down come September. Patterson, a former deputy state attorney general, was approved by the Senate Judiciary Committee in an 11-1 vote and last week is expected to secure approval from the full Senate.

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About the Author

Kevin Mooney is an investigative reporter with free market think tanks associated with the Franklin Center for Government and Public Integrity. He has also written for the Daily Caller, the Washington Times, the Washington Examiner, NetRightDaily.com and NewsBusters.

Letter to the Editor View all comments (39) |

PJ| 6.10.11 @ 7:39AM

The various educational rulings have caused property taxes to sky-rocket into the stratosphere. I have a friend who lives in an ordinary home (far from being a McMansion) in an ordinary neighborhood. As of 6 yrs ago her property taxes was close to $20,000. Wonder what it is today! The reason is that part of these receipts is subsidizing school systems such as the one in Newark where the tax base is almost non-existent. All this because the NJ court system says so.

Alan Brooks| 6.10.11 @ 6:11PM

Christie is possibly the best you have got-- which means he hasn't got a snowball's chance in Hell to be elected POTUS. You will keep running BushDoleMcCains until Hell does freeze over.

PJ| 6.10.11 @ 9:50PM

Don't forget Clinton.

PJ| 6.10.11 @ 9:53PM

Sorry, Clinton wasn't a repub.------Can't read AMSpec & drink my nightly summer drinks at the same time!! TaTa!

Alan Brooks| 6.11.11 @ 10:07PM

Christie hasn't got a prayer, he is too decent a person. One of the most successful presidents was FDR, but as a person he was a total skank; he would have thrown Eleanor off a bridge to be re-elected if he had had to.
Carter was a good person, but an incompetent- to say the least- and as smarmy as any televangelist.

Alan Brooks| 6.11.11 @ 10:08PM

...come to think of it, if smarm makes one a bad person then Carter was a bad person!

Old Soldier| 6.10.11 @ 7:52AM

The Court really has done its best to screw up this state. The state income tax was inacted in the 70's in order to pay for schools and keep income taxes down. By highjacking that revenue and sending it to only specific districts, they drove property taxes in the rest of the state through the roof.

I blame Christie Whitman. She insisted on pro-choice judges. Since the NJ Constitution is silient on abortion, this meant activist judges who don't care about the cosntitution or rule of law.

Beware of Rinos.

PJ| 6.10.11 @ 8:32AM

Don't blame it all on Whitman. One of the biggest RINOs of the state was Gov Thomas Kean & that's only as far as my political memory goes for NJ republicans.

rightasrain| 6.10.11 @ 8:59AM

Much of this traces back to Gov. Cahill, a Republican who refused to fight the original Robinson v. Cahill suit.

old white guy| 6.12.11 @ 8:55AM

it is time to tell the court that the will of the people will prevail not the will of the court. if the court does not like this then impeach them all and refuse to appoint another court. when an unelected body makes law then the people must revolt.

Roswell Roofer | 6.10.11 @ 8:17AM

I similar how you write.Are you absorbing in a voice term writer job?
Thanks
Atlanta Roofing

ConantheContrarian| 6.10.11 @ 9:00AM

Are you a stupid, half-literate, illegal alien?

Bob K.| 6.10.11 @ 8:46AM

Why not do it the easy way?

Do what ever is necessary to make the NJ Supreme Court positions elective instead of appointed. A Constitutional Convention perhaps, to amend it in that fashion?

That is the way it is done in PA and the NJ electorate would support it in a heartbeat! In fact, just a serious threat to do so would bring these Justices, with their inflated egos, into line with the concerns of the electorate.

There is much to be said for Democracy, especially in hard times when populist sentiments come to the fore.

john-john| 6.10.11 @ 8:49AM

Christie needs to stare the Justices down, like Andrew Jackson. He can look for a way to "pack the Court," like FDR tried to do -- if need be, by putting a constitutional amendment onto the ballot. I wonder how the justices would react to being arrested and tried for violating their oaths to uphold the N.J. constitution? I wonder how their mug-shots and fingerprints would look on the front pages of N.J. papers? The fact remains that judges do NOT have the "power" to order spending of tax dollars! Their so-called dictate -- or, better put, "UKASE" -- is NULL and VOID.

JWW| 6.10.11 @ 9:37AM

Partially agree with john-john.

The "solution" mostly laid out in the article is getting justices that agree with the correct interpretation of the NJ constitution. Justices that realize that the legislature makes law and along with the executive sets fiscal policy and NOT judges.

However, the correct course of action is to rein in the judges and let them know that they are a co-equal branch of govt with the Governor and Legislature and not primary over the legislative and executive.

Christie needs to say "no" to the judges illegal raising of taxes. Taxes are not within the realm of the judiciary. Christie (or some other governor/mayor, or president) needs to pull a Andrew Jackson.

The governor could simply say, if you my fellow state citizens, not bowed down subjects to an unelected judiciary, think I am out of bounds, then have your legislature impeach me.

Of course there would be "political danger" in this course of action. There is "political danger" in almost any course of action.

As to your fear of a governor disregarding court orders, well there are mechanisms for that such as at least voting them out of office. A legislature to defund them or as a last resort, impeach them.

Gary| 6.10.11 @ 10:22AM

It is quite understandable to me how legislatures in NJ and elsewhere have ceded many of their powers allowing judges to make policy. That way, they don't have to make tough policy decisions and can blame the courts for any fallout. Instead of representing the people's best interests, these cowards punt to the courts and thus benefit their union and leftest backers without ever having to cast a vote.

Everyman | 6.10.11 @ 10:35AM

A detail: the word you mean to use is "prededent", which is not "precedence" in its plural form. The common law is based on precedent - prior - court decisions. That is not what "precedence" means.

loulou| 6.10.11 @ 10:35AM

Good luck relying on Christie to straighten out the NJ SC. He is a RINO and will probably appoint a Muslim or two.

Maxwell| 6.10.11 @ 9:32PM

Hate to tell you, he already has.

Frank Natoli| 6.10.11 @ 11:00AM

JWW has it right. The fundamental problem is that the courts, state and federal, no longer answer to the written constitution but instead to their personal politics. Couple that with the fact that no constitution anticipated such a devolution of the rule of law, and we are left with the present situation.

I has been reported that the U.S. Constitution permits the Congress to set the jurisdiction of the Court, i.e., to explicitly say "THIS is removed from the jurisdiction of the Court". If this is true, it is high time that the Congress bring SCOTUS down to size as a co-equal and not superior branch.

And while Abbott is the case for this article, I suggest that the Torricelli decision was proof that no rule of law exists in NJ. Torricelli was running for re-election to the U.S. Senate, had some embarrassing revelations [pre Twitter], saw his poll numbers tanking, Doug Forrester [RINO] rising, and the NJ Democrats decided to replace Torricelli with Methuselah Lautenberg. Although the statutory deadline for setting the ballot had unambiguously passed, the NJ Supreme Court allowed the substitution of names, and Methuselah won in the general. That court, and often SCOTUS, is an unelected, unaccountable extension of the Democrat Party.

There is no rule of law here.

MBD| 6.10.11 @ 12:04PM

The activist streak of the New Jersey Supreme can be traced back before the 1970s to the Court of Vanderbilt, Jacobs and - until his appointment to the U.S. Supreme Court in 1956 - William Brennan.

A different point of view| 6.10.11 @ 2:41PM

The author seems to have selective memory and a dim understanding of the three-pronged checks and balances system of the body politic. One thing is that he incorrectly asserts that the court overstepped its charge in dictating how tax dollars are spent. He neglects to mention that the previous administration successfully created a funding formula and policy that eliminated the former formula, which Abbott decisions established, in a constitutionally compliant way. Unfortunately, Christie violated the current formula, cutting nearly $1 billion of education spending in the budget. The court, in its decision, merely maintained the executive and legislative branch cannot ignore their constitutional responsibility when it serves political whims or is simply inconvenient to do. That's a constitutional check, not a "renegade judiciary." And in fact, the court only ordered the state to fund the most needy districts to the tune of $500 million, which coincidentally was the amount of unanticipated tax revenue projects, hardly the $1.3 billion the formula demands.

Frank Badomi| 6.10.11 @ 8:03PM

"the executive and legislative branch cannot ignore their constitutional responsibility when it serves political whims or is simply inconvenient to do"

And your anonymous attitude is evidence that only a state bankruptcy will clarify what is a "whim" or an "inconvenience" versus a conveyor belt from the taxpayers to the teachers' union.

Different point of view| 6.11.11 @ 12:13AM

Frank, my intent is to shed light on facts that are glaringly absent in the article. But if you want to talk about bankruptcy, then why aren't you upset that the governor has literally annexed an entire city to revitalize a dying industry, the casinoes of Atlantic City. He's throwing $260 million dollars on the Revel project, calling it an investment, at a time when he won't invest in schools, as required by law. Nonetheless, AC is a bad bet. It squandered a 10-year plus monopoly on gambling on the east coast. It never became a world class destination like Vegas. Now the competition is killing it and Christie thinks that what, a new hotel or two, is going to make people forget what a lame destination it is?

But we are getting off the point. My point is that whether you are a liberal, conservative, or somewhere in between (what I think I am), columns are better served when they report all the facts, even inconvenient ones. I find a lack of facts, or selective memory, diminishes the strength of the author's argument. We all know Reagan was a great communicator and pragmatist. Christie has his brand of communication, but pragmatism is not his strong suit.

Frank Badomi| 6.11.11 @ 7:40AM

Never heard of "Revel", so did some browsing and found "Governor Christie announced that earlier that morning the Economic [E.D.A.] Development Authority of the State of New Jersey was going to provide 261 million dollars through tax rebates over a twenty-year period that would be generated once the Revel project was completed". Taxes on corporations, especially the combination of the world's worst federal rate of 35% plus the very high NJ state rate are passed to consumers and drive companies out of the state and/or country.

The problem is that government spending, federal and state, is so wildly out of control that a bankruptcy is inevitable unless fundamental changes are made, fundamental changes which you regard as unlawful. If that's true, then the law needs to change.

Different point of view| 6.11.11 @ 12:34PM

While that corporate tax rate is the highest, we both know (wink, wink) there are some corporations that in addition to never paying taxes, but also get a rebate, GeeeEee!

But that's again getting off the point. Every state is constitutionally charged with providing free public education to all children within its borders. What pays the bulk of the expenses for the schools in NJ is the property tax, not corporate and personal income taxes.

The reason why corporations leave NJ or the US is singular these days, profits. Maybe when we have fully dissolved the middle class and created a society full of cheap, unskilled, illiterate laborers who will work for $2 an hour, they will come back.

RWinks| 6.11.11 @ 2:57PM

That depends entirely upon whether we keep electing Democrats.

Frank Badomi| 6.12.11 @ 8:55AM

Careful about your stated affection for the middle class. The dominant constituencies of your party are the very rich and the very poor, not the middle class.

Low wages are an element in tempting companies to leave. You mention that. What you don't mention are environmental and regulatory policies and energy costs that make it impossible to be profitable in this state. You may dream that all companies should be non-profits, you know, like the government, but that's not how this country became the greatest industrial power and wealth generator in the history of the planet.

As for the property tax funding schools, don't forget it was the courts that decided that funding schools through the property tax was unconstitutional and thus mandating an income tax, which in living memory we didn't have. Now we have one of the worst income taxes in the country and still the worst property taxes. And the conveyor belt from the taxpayers to the teachers' unions continues to roll.

And your concern is that not enough is being spent.

Different point of view| 6.12.11 @ 9:43PM

Frank, you like to get off the point. The governor is a prosecutor. He knows the law and he knows he tried to pull a fast one. He also knows he got off pretty lightly when it comes to the school funding debate. It's the reason he's not going to challenge it.

Now to the greater debate which you want to engage in, I think the difference between ultra conservatives and moderates like myself are the kinds of capitalism we ascribe to. You seem to favor the free market version of capitalism, rife with greed and destruction, while I prefer responsible capitalism. I want this nation to prosper, all of us. But I also want clean water. I want predatory lending to stop. I want supply and demand to govern gas prices, not market speculators. Government plays a role in this, and when the economy nearly faced an entire meltdown, the government bailed it out. It happened because of deregulation of banks, mortgage companies, and investment houses. Greed took over and we now remain on the precipice of another great depression (possibly). In any event, this will be my last comment. I enjoyed the give and take, as Americans we can agree to disagree, then have a beer (metaphorically of course). Be well.

Ore Gone| 6.10.11 @ 3:57PM

This is another example of the Judicial system over stepping its authority through interpretation of the law. Look at the commerce clause and how simply it is written but a lawyer would argue that it means everything and nothing. If a law is the least bit vague it opens the door to any interpretation that you want and we are seeing an attack in that arena on the constitution and the freedoms of the American people. All of these attacks have been going on for the last 40 years while the silent majority stayed silent.

wncchester| 6.10.11 @ 5:33PM

".. the state has followed a progressive trajectory over the past few decades divorced from constitutional government."

Being a 'progressive' sounds so nice, so 'modern'. Few of those who claim the idea recognise it means progressive encrouchment on liberty and progressively taking the results of those who will work and transfering it to those who will not - in the name of "fairness". (And I am NOT suggesting we ignore the infirm and weak, just the lazy and willfully stupid who live in the parasite professional poverty class.)

Diana| 6.10.11 @ 7:02PM

Governor Christie is fat. It's embarrassing watching him on television.

Frank Badomi| 6.10.11 @ 7:58PM

You're right, Diana. I always had a better feeling watching a relatively svelte Corzine, McGreevey and Florio while they wrecked the state with their Democrat Liberal policies.

Mert| 6.10.11 @ 8:19PM

And you, madam, are a shallow twit.

Bob K.| 6.11.11 @ 12:15AM

Hey now, listen to the lady talk with her gonads and learn a little bit about how they think!

You have to be skinny and good looking like a TV Anchorman to get a woman's vote. It also helps to have a good baritone voice, so you can sound as good as an empty barrel, to match your empty head and empty suit (like u no who) and maybe appear on "Dancing with the Stars" and then you will get their votes! Rahm and Weiner knew that!

Mimi| 6.11.11 @ 7:24AM

We the people....Are getting the "SMARTS" !
Behind the Liberals back, we are waking up to their use of the courts to get there waythat is denied this 20% in the legislative process. These tricks have caused much CHAOS and giving us Lopsided Democracy....And diminishes the rightful power to the PEOPLE. The seeking of knowledge and meaning of our legacy, by people in droves since our nation has experienced the recent threat of the Lefts invasion of LIBERTY will continue to grow. The country is in self-correct mode.

Melvin| 6.11.11 @ 10:08AM

The office of the Speaker of the House just put out the Speaker's response to the criticism of him get cozy with Obama on these golfing outings.

"Obama thinks I'm Good Enough, I'm Smart Enough, and Doggone It, The Democrats and Obama Like me."

A little adaptation of something from Stuart Smalley.

weddingdresses | 6.13.11 @ 2:48AM

Article is very interesting,thanks for your sharing.I will visit this site.

insanity | 6.13.11 @ 10:54AM

nice post

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