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Judge Not

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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  • Steve Dennis October 10, 2011 at 6:36 AM

    When people complain about gridlock what they are forgetting is that our system was set up purposely to move slow. The founders never intended for 2,000 page bills to be passed without being read or for legislation to be fast tracked into law before the people could see what is in it, that is why the system was set up this way–to protect the people from out of control legislators.
    Steve Dennis recently posted..Gunrunner: Darrell Issa to subpoena Eric HolderMy Profile

    • RightHandMan
      RightHandMan October 10, 2011 at 2:05 PM

      We should require them to write the bills out by hand!

  • Silverfiddle October 10, 2011 at 6:56 AM

    The government is also gridlocked because we are attempting to use it for unintended purposes.

    The founders never envisioned government legislating so many facets of our lives. All those things not mentioned in the constitution were meant to be left to the states and the people for exactly this reason. We are not a one-size-fits-all nation, and who am I to shackle others with my idea of morality?

    Government doesn’t work because it was never designed to rule every last corner of life.
    Silverfiddle recently posted..NY Times Criticizes Social Welfare!My Profile

    • RightHandMan
      RightHandMan October 10, 2011 at 2:07 PM

      Agreed, but that is the genius of the system… The gridlock is an ingrained outcome that discourages legislation outside of the Constitutional boundaries.

  • Infidel de Manahatta October 10, 2011 at 9:32 AM

    This notion that the Constitution and the Founding Fathers gave the Supreme Court ABSOLUTE and FINAL authority to decide what is and isn’t constitutional should be rebutted now. Since when do 9 unelected people decide for 300 million?
    Infidel de Manahatta recently posted..The Pastoral Constitution of the Democratic Party (Part Two)My Profile

    • RightHandMan
      RightHandMan October 10, 2011 at 2:08 PM

      Since the 20th century…and the courts decided that they wanted a piece of the pie.

  • Jim at Conservatives on Fire October 10, 2011 at 9:54 AM

    In hindsight, i wonder if our founders made an error in referring to those in the House and the Senate as legislators:i.e., law makers. Because from day on that is what they have done, write more and more laws. I have often wondered if things might be a t lot better if Congressmen and Senators were elected at large rather than by party affiliations. They then might have focused on writing the necessary enabling laws needed to implement the Constitution and focused the rest of their time on reviewing the behavior of the Executive Branch and the Judicial Branch and impeach those who are misbehaving ( acting out-side-of the Constitution).
    Jim at Conservatives on Fire recently posted..Order out of Chaos? __ Part IMy Profile

    • RightHandMan
      RightHandMan October 10, 2011 at 2:09 PM

      It would have been tough to have imagined what the legislatures have become.