You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves. — Thomas Jefferson in a letter to Mr. Jarvis, Sept, 1820
For years I have heard the complaint, from both republicans and democrats that Congress can’t ever get anything done. In fact, if you were to take a poll among those even slightly educated in politics, they would more than likely reverberate this frustration. Every election cycle this sentiment becomes relevant in the campaigns of political hopefuls in both the executive and legislative branches – they all run on the promise of some kind of reform. Delivery of reform implies that we need change in a specific area and that this individual can deliver it. In the end, most Americans don’t agree on the specifics of meaningful reform and the elected officials can rarely follow through…even if they want to.
The popular attitude toward the federal government has therefore become one of negative sentiment due to the lack of ability to deliver. There is simply too much resistance within the system to get most meaningful reformation done. The natural reaction to proponents of a given transformation is to take the path of least resistance. This part of our nature is what brings us to the point of turning our judiciary system into a legislative or representative entity – a grand fault.
Both sides are guilty of turning to the judiciary as a means of solidifying their legal stance. Abortion, for instance, is an issue that has been completely removed from the open debate and potential adjustments of our law writers and left entirely to the judgment of the bench. The American people, therefore, have no say in the matter as we have accepted this perverse reality of judicial supremacy. We have literally traded in our legislative process for a more expedient philosophy of judicial incomparability – we have invested in masters to tell us rather than representatives to hear us.
As Justice Scalia said to Congress last week, unless we learn to love the gridlock, we lose the protections that our government provides for us. We have instead learned to hate the congestion and judge it as an obstruction to progress. As Scalia implied, it is our gridlock that protects us from bad legislation. Passed legislation doesn’t necessitate progress. If we could easily pass laws at the federal level then we would end up with what Hamilton referred to as “an excess of legislation”. Not only an excess though, but an excess of bad legislation. Just look at some of the legislation we get when we get super majorities that are backed by the executive (see Obamacare).
As Newt said in the video that John posted yesterday, our Declaration of Independence wasn’t only a rebut to the powers of a monarch, but the powers of an unbridled judiciary. Our founders were capable enough to see that it wasn’t just a King that we needed to be rid of, but an entire system of government that subdued sovereignty. As is the case in many of the lessons they learned the hard way, we willingly flounder in rebellion against their protections. We cheapen their greatest structural safeguards and value the monstrosity they fled from.
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