Courts Run Amok? Democratic Crisis Unfounded

The Washington Times (Washington, DC), September 14, 2004 | Go to article overview

Courts Run Amok? Democratic Crisis Unfounded


Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

According to Phyllis Schlafly, judicial tyranny stalks the nation like a colossus, issuing with abandon constitutional encyclicals voiding legislative enactments and executive decrees. In "The Supremacists: The Tyranny of Judges and How to Stop It," she seeks to summon into being a popular crusade to defeat a long train of asserted judicial usurpations. The prime weapon would be depriving the U.S. Supreme Court of jurisdiction to interpret the Constitution.

Congress would legislate with no restraints, and constitutional interpretations would vary from state to state. These drastic measures - akin to President Franklin D. Roosevelt's discredited court-packing plan - are urgent, the author exhorts, because the Supreme Court repeatedly flouts majority sentiments. Indeed, a democratic crisis is discerned: "We must save self-government from the rule of judges. The whole future of America depends on it."

But the alarmism is unconvincing. Judicial abuses in constitutional interpretation should be answered by: informed criticism that transforms public opinion; new appointments as vacancies arise; and constitutional amendments in egregious cases. Presidents Franklin D. Roosevelt and Ronald Reagan were models in the bully pulpit and in judicial appointments. Both changed the complexion of constitutional law.

Contrary to the author, the Founding Fathers most feared majority oppression. As Thomas Jefferson reminded, tyranny by the majority is tyranny nonetheless. The father of the Constitution, James Madison, worried in Federalist 48 about legislative usurpations, and advised: "[I]t is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions."

As a member of the House of Representatives, Madison celebrated the independent and life-tenured federal judiciary as a bulwark protecting the national Bill of Rights. He drew on the sad experience of state bills of rights, writing to Jefferson in 1788: "Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia, I have seen the bill of rights violated in every instance where it has been opposed to a popular current."

The Founding Fathers did not ignore the danger of judicial excess. Constitutional amendments, the appointment of new justices by the president with the advice and consent of the Senate, and the potential of impeachment for high crimes and misdemeanors were calculated to curb the threat. These checks have generally kept the Constitution in the middle of public opinion, neither a locomotive nor caboose.

For more than two centuries, the Supreme Court has never persisted in affronting popular orthodoxies. …

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