The public hearings of the Senate Judiciary Committee to consider Ketanji Brown Jackson for a seat on SCOTUS prompts reflection. All societies of laws need courts and judges.
If enacted laws are too specific, their principles cannot be applied beyond rigid limits. If a law says a person may not rob banks on Tuesdays at lunchtime, then it cannot apply to any other day or time on Tuesday. So the law needs to be broader. However, then it may become “overbroad.” So laws need some circumscription.
Similarly, laws potentially can be misinterpreted. Some laws are inartfully drafted or contain outright scrivener’s errors. Sometimes, unintended consequences later emerge. Sometimes, later societal developments or technological advances change a law’s underlying presumptions.
The way America’s constitutional republic is supposed to operate is this:
People elect legislators to enact laws reflecting voters’ values. Our smaller colonies feared the large ones would dominate. However, larger states feared the itsy-bitsy ones would emerge with expansive influence disproportionate to their sizes. Therefore, in a sensible compromise, two legislative houses were established. One would allot each state equal influence with two representatives per state, whether Delaware or New York. The other would assign seats proportionate to the state’s population, so a larger state might get 30 to 40 representatives while an itsy-bitsy one might get only one. We call the former the “United States Senate” or the “Upper Chamber,” and we call the latter the “House of Representatives” (and other things). Many states have bicameral legislative arrangements similar to this federal compromise.
It was decided that all House representatives would have two-year terms so that ever-changing political winds and trends in thinking could be reflected in a timely manner, while senators would serve six years to protect a more stable alternate structure from gyrating too wildly. For added stability, only one-third of senators would face reelection every two years. Within their respective chambers, certain procedural differences would reflect these different structural purposes. For example, the Senate eventually evolved a filibuster rule that now requires 60 percent agreement for a law to pass, while the House can pass bills on a simple majority.
Under this grand compromise, a law is not enacted until both bodies pass it. Often, the two chambers pass similar laws, but not identical. In such cases, the House and Senate then send delegates to confer, trying to harmonize their two bills to be identical. If unsuccessful, the enactment fails. If they reach identical wording, the conference delegates present their modified version to their respective colleagues for a new vote. If both bodies then vote to pass that exact same law, it becomes law — probably.
Meanwhile, the president’s role is supposed to be executive — not to enact but to administer laws. The president also can veto laws he opposes. That great power can be overridden if two-thirds of each legislative chamber so choose. Otherwise, the vetoed bill is dead. However, if the veto is overridden, the president must implement it. Because the legislative process consumes time — including speeches, drafting, seeking public input at committee hearings, lobbying from the outside, horse-trading on the inside (“If you vote for my farm bill, I will vote for your energy bill”), rewriting, and more — a law can take months or years to be enacted. Therefore, for urgently pressing matters, the president properly enjoys the power to issue “executive orders” for immediate action — meanwhile.
Executive orders are intended for urgencies, not as a routine circuitous congressional bypass. Unfortunately, executive power is abused from the day a president enters because no formal limiting mechanism exists. Similarly, as the world has grown increasingly complex these past 230 years, government agencies have been established to administer laws. So the Environmental Protection Agency, the Federal Aviation Agency, the Federal Communications Commission, the Securities and Exchanges Commission, the Food and Drug Administration, the Immigration and Naturalization Service, the Internal Revenue Service, and so many other “alphabet soup” agencies now execute laws. In theory, they exist only to help the president implement Congress’s enactments. In reality, they have evolved into a shadow unelected government.
Agencies sometimes legitimately need new mechanisms or guidelines for administering laws. To obtain that authority, they publish proposed new rules in the Federal Register, invite public comment, and then publish final decisions in the Code of Federal Regulations. As with presidential executive orders, this necessary rulemaking power is abused — often. Consequently, unelected agency bureaucrats now make laws independent of voters’ input. Little constrains an agency’s usurpation of democracy, but courts can reverse “arbitrary or capricious” rulemaking.
With Congress enacting bills and the president and agencies executing their administration, courts are needed to interpret laws that are unclear. Thus, if “speech” is protected, is naked dancing at a “strip club” deemed “speech”? Viewpoints are poles apart. Is burning an American flag? Are there limits to First Amendment protections? What about yelling “Fire!” in a crowded theater (or yelling “Movie!” in a crowded fire station)? A bullhorn on a street corner outside an apartment building at midnight? Inciting a mob into imminent lawless action? Cyberbullying aimed at an adolescent?
Thus our system of checks and balances: The president can veto Congress, while Congress not only can override but even can remove a president from office subject to the House issuing an indictment (“impeachment”) and the Senate convicting at trial. The Upper and Lower Chambers can cancel each other unless they compromise in conference. Courts can strike down laws and presidential actions that exceed the Constitution’s limits. On the other hand, the president nominates federal judges, subject to the Senate’s advice and consent (and whether they’re a Black woman). Judges thereupon enjoy life tenure to protect impartiality; even raging popular pressure should not impact their independence. Although they may not enact laws but are obliged to interpret laws — applying only the Constitution as their compass — judges have authority to inform Congress that a properly enacted law is “unconstitutional.”
That is how the “checks and balances” system is supposed to work brilliantly. Alas, humans are imperfect.
A strict constitutionalist judge — the only kind there should be — is required to set personal feelings aside. All that matters is whether the Constitution permits it. If the Constitution says abortions shall be legal, then a judge has almost no right to approve a law banning them. If the Constitution says illegal, then a judge has almost no right to uphold them. The only question of interpretation should be whether the Constitution’s framers addressed themselves in such a way that leaves open the possibility they would have allowed or forbidden something more if today’s science, technology, or other trends had existed then.
For example, the Constitution’s 1791 Fourth Amendment does not imagine wiretaps, and the 1791 Eighth Amendment does not contemplate electric chairs for executions but does bar “cruel and unusual punishment.” That leaves Congress, after Alexander Graham Bell and Thomas Edison emerge, to decide whether new developments in phones and electricity justify applicable legislation. Courts ultimately would need to determine whether the electric chair is within the rubric of “cruel and unusual punishment” banned by the Founders or whether John Jay, Alexander Hamilton, and others among them would have been as sanguine with such devices as with the gallows that graced John Wilkes Booth’s cervical vertebrae. The judge’s role in such cases is not to say “The Founders would find electric chairs a reasonable punishment device, but I personally find them repugnant.”
The main two developments that have corrupted this excellent construct in recent years are these:
1. Too many judges superimpose personal values for Constitutional provisions. If a judge really is smarter, offering better ideas than the Founding Fathers, the Constitution contemplates the jurist will seek elective legislative office and, if successful, will vote with others similarly elected amid a popular wave reflecting a new zeitgeist — spirit of the times — by amending the Constitution. Prohibition — and then its reversal — are examples. Chief Justice John Roberts is partly correct that judges often adjudicate fairly and impartially, like when deciding an eviction order for non-payment of rent, a bank robbery, a slip and fall on a banana peel, and a case litigating a broken contract to supply 100 widgets in good working order when only 50 broken widgets are supplied. However, particularly since the Warren Court, judges on the left have been fabricating laws when contested public policy enters the mix. They amplify corruption by wresting authority on matters outside their proper jurisdiction. They did this in Roe v. Wade. They did it in Obergefell. If the American people want same-sex marriage legalized, they can elect legislatures to enact such laws or amend Constitutions accordingly. It is outside the proper purview of judges to enact marriage law. Moreover, family law belongs within state court jurisdiction.
2. This phenomenon underscores the main corruption. Elected House representatives and senators, fearing ouster from their cushy and powerful promontories if they make too many enemies among voters in their constituencies and among donors living outside, prefer avoiding taking stands — either way — on controversial matters. When certain difficult matters must be addressed, they therefore routinely punt to the courts. Thus, they consciously shirk legislative duties, going instead through the motions of enacting laws like naming post offices — while they leave the “smaller stuff” like abortion, same-sex marriage, church-state issues, privacy, search-and-seizure laws, and Obamacare for unelected executive agencies to make rules and unelected judges to craft law.
This is terrible. The Constitution was not contemplated to operate this way. It is fixable. When Congress gets back to owning lawmaking and judges to interpreting, it will hum like clockwork.
Don’t hold your breath.
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