Thomas, Christopher M., Harvard Journal of Law & Public Policy
One of the foundational questions of American constitutional inquiry since the Revolution has been the proper relationship between the People and their government. The Framers arrived in Philadelphia early in the summer of 1787 with various conceptions of the ideal governmental framework. Our modern political discourse tends to describe the outcomes of the Convention with abstract nouns devoid of meaning and context: equality, liberty, and so on. But the great national debates that began that fateful summer were filled with nuance and uncertainty. Can we best hold the President accountable through popular election, legislative appointment, or some intermediary system of electors chosen by the People? What is the proper balance of accountability to the People and insulation from the passions and whims of majority factions? One of the few areas where the Framers were in general agreement was in the necessity of the independence of the federal courts. Although they disagreed on who should appoint federal judges, the Framers agreed that judges should serve in "good Behaviour."
The People's agreement with this principle has ebbed and flowed over time, based largely upon their satisfaction with the policy outcomes of Supreme Court decisions. Widely unpopular decisions, such as those protecting flag burning and banning school prayer, have caused calls for restricting the Court's jurisdiction. The resulting political debates have raised questions regarding the role of judges in creating law and attempting to transform cultural norms. And perhaps more importantly, the relationship between the People and the state courts has taken myriad forms, again changing with the public's view of judges and courts. Although law students tend to focus on the federal system, it is state courts and judges who most often affect the law applicable to our daily lives.
These issues and questions were the topic of debate at last year's National Federalist Society Student Symposium, held at the University of Michigan Law School. Continuing our tradition of twenty-seven years, the JOURNAL is proud to publish essays developed from the speeches given at the Symposium. These thirteen essays discuss various aspects of the theme The People and the Courts: judicial interference with community values, the merits of selecting our judges, popular responses to unpopular decisions, whether law and economics is anti-democratic, originalism and the media, and the role of tradition and the Constitution. This conversation is ongoing, and I am confident that the essays in this Issue will contribute significantly to our conception of the proper role of judges in our Republic.
We are also honored to publish Secretary of Homeland Security Michael Chertoff's perspective on the most timely issues of national security. Much of our recent national security debate has centered on the question of whether the War on Terror is best treated as a military action or as a law enforcement action. Secretary Chertoff argues that this is a false dichotomy; we need not choose only one. Both frameworks provide essential tools, which the Bush Administration, through the Department of Homeland Security, has used to keep the nation safe since 9/11. And safer we are. But just as we could not give in to hysteria in the time after the terrible attacks, today we must not become complacent. Although we have been safe for seven years, we must continue to adapt our tools to the enemy.
Judge Edith Brown Clement presents a new perspective on religious-monument law, bringing principle back to a doctrinal line which has seemed increasingly capricious since the Supreme Court's counterintuitive split decision in Van Orden and McCreary. When a display of the Ten Commandments can be unconstitutional when in a county courthouse but not when on the grounds of a state capitol, one is left wondering whether law or whim is deciding the cases. According to Judge Clement, Van Orden and McCreary morphed the religious monument purpose test into a subjective, actor-focused inquiry, which led to the problematic outcome that the same monument could be constitutional at some rimes but not others. …