Amending responsibility into federal courts

By Bruce Walker
web posted December 11, 2000

The silly and dangerous mess in Florida brings home how far the American Republic has moved from the limited, federal democracy envisioned by its Founding Fathers. The Constitution mentions two bodies directly connected with the election of a president: Congress and state legislatures. Where are either of those representative institutions in the current fuss? The very notion that the elected representatives of these bodies may act is perceived as a usurpation of authority. Why?

The Supreme Court, two centuries ago, began a quiet counter-revolution against government deriving its just powers from the consent of the governed. Not only did the Supreme Court, and later federal courts, begin to gobble up political power, but their clever helpers -- lawyers -- masked this theft with a tale of mythic proportions: The Great Defender, Our Supreme Court.

Seldom has a story been so absurd. The Supreme Court, in its odious Dred Scott decision, insured that only a bloody Civil War would end slavery in America. When Republicans in Congress passed wholesome laws to prevent the legal oppression of blacks after the Civil War, it was the Supreme Court that struck down those laws as unconstitutional. In the 1930s, when political rights of blacks were almost non-existent in the South, it was the Supreme Court that "interpreted" federal law to allow the Mississippi Legislature to gerrymander to its heart's content.

Defended by the Supreme Court
Defended by the Supreme Court

The carnage caused by courts does not end there. After Pearl Harbor some Americans -- particularly those of Japanese, German, or Italian descent -- desperately needed a noble and impartial institution like the Supreme Court to protect them. Did it? In two decisions, the Supreme Court upheld the internment of Japanese-American citizens.

These days federal courts dabble in overturning plebiscites of state citizens as "unconstitutional" and ordering purely private institutions like the Boy Scouts to violate their moral principles or face the legal lash.

Trial lawyers, rich as pirates from the booty of their raids on politically incorrect businesses, provide whatever cover and sanctimonious commentary these judges need. So elections come screeching to a halt, as judges examine the entrails of sacrificial goats or read tea leaves for constitutional intent.

All so true, the reader says, but what can be done? Actually, quite a lot. Congress can limit the jurisdiction of federal courts and can even abolish all federal courts except the Supreme Court (it has used this latent power seldom, but occasionally). Congress could also issue its own "Opinion" on the Constitution, a document that its members are also bound to uphold. Perhaps Congress should just increase the size of the Supreme Court to ninety-nine members, making sure that none of the new ninety justices were lawyers, but rather historians, businessmen, soldiers, physicians, semanticists, and religious leaders.

These approaches are good, but maybe an even more direct appeal is needed. How about this: Amend the Constitution to provide that every two years the House of Representatives votes on each judge or justice appointed under Article III of the Constitution, and if the House determines that the judicial official is not sensibly and prudently interpreting the Constitution or the statutes passed by Congress, then by a majority vote that judicial official is removed from office.

This amendment would confront head-on the principal problem: Judicial accountability for rational and limited use of the inherent power to interpret laws and other primary documents. The specific and stated intention of this amendment would be to restore a measure of control over a judiciary that has grown increasingly uncontrollable.

Why give this power to the House of Representatives? The House has no say in nominating or approving appointments, so its members have no special interest in picking fights with sitting judges. The House also is the most purely representative of all institutions of the national government (the exact antithesis of the Supreme Court), and so the logical governor of any type of aristocracy.

Merely proposing this change would also open a long overdue debate about the value of an autonomous and unaccountable judiciary, including discussion of its many historical failures and explanation of how other working democracies seem able to function quite nicely without this mighty fortress of law.

Congressmen and senators might be too craven or shrewd to tackle this issue. No matter. State legislatures are as frustrated as anyone with the hubris of federal judges -- let states begin to call for a constitutional convention directed to this narrow issue. Will state legislators be able to explain how much better they are at understanding the limited democratic sovereignty of American government than federal judges are? The smart money says "yes."

Perhaps the process could dig even deeper than that. Many states allow legislation and resolutions to be passed by direct vote of the people. Have the legislatures of these states begin to propose to the people for vote this constitutional amendment. Does anyone question how the people would vote? Does anyone doubt the ruckus it would cause?

Go to the waitress and the doctor and the housewife and the carpenter. Ask them if they want the power to have their representatives remove federal judges who get too remote, too bossy, too arrogant, and too power-hungry. Make that a campaign issue in every campaign, from Mayor to President. Make it a mantra. Remind people that all power in government starts with them. They'll like that idea.

Bruce Walker is a frequent contributor to The Pragmatist and The Common Conservative.

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