Among democratic world governments, the American system is unique. Nowhere else is supreme political power vested in judges and courts. Everywhere else, elective/political bodies are the ultimate source of laws.
In fact, the idea that courts may overrule the Legislature was not part of the original American design – it simply became fixed through custom. In 1803, “judicial review” came forth full bearded from the brain of clever lawyers. John Marshall (who hated the new president, Jefferson, and all evidence of his existence) cleverly slithered Marbury versus Madison past a preoccupied Congress a precedent that awarded the ultimate power of United States lawmaking to the judiciary.
Courts should be used to settle property claims, correct contract and commercial wrongs, grant divorces, sentence shoplifters and provide employment for ambulance chasers. When they are used to decide political questions or to gain political advantage, the representative muscle of government is weakened; the fuselage of democracy suffers stress cracks.
But that is exactly the role the American Supreme Court is often asked to play.
Liberals push for rights that have not been enumerated in the Constitution. The fact that privacy is important is beside the point. If the people decide that privacy is a guaranteed right, they should pass such a law though the representative process. Conservatives try to remake laws they can not defeat in Congress – note the lawsuit filed by 23 governors and attorneys general (including Maine’s own Doctor of Jurisprudence), asking the court to invalidate the recently passed National Health Act. These folks, Republicans all, make the half-baked claim that Congress can only regulate activity, not inactivity. To believe that this claim is more than smokescreen is to believe in the tooth fairy. The unanimous political party identification among these litigants makes the issue crystal clear. The Republicans hope to get something by using the judges that they couldn’t win by using the representative machinery of democracy.
Granted, great advances have come through court decisions that did not reflect a broad public mandate – women’s control of their own bodies, equal representation under law, desegregation of schools – but these came at the cost of a weakened democracy. It is tempting to choose the relatively simple route to new law written by five of nine justices, but such short-term satisfaction carries long-term costs.
Poor laws die a thousand deaths – in the congressional maelstrom, by electoral changes, in executive flexibility, through succeeding administrations – and ultimately through amendment or repeal. If the court is used to shortcut the elective/representative process, it weakens the notion that the majority can enact into law an expression of shared values that makes possible the benefits of democracy. The opponents of the new health law on the right and the proponents of reproductive choice on the left have strong arguments – but they are political, not constitutional.
Judicial restraint, a voluntary reluctance to write judicial law, exists among conscientious judges, and has done much to cool overheated courts. But it has been framed solely by the personality and intellectual views of individual judges as they came and went over the past two centuries. Restraint has often proved a leaky vessel, as illustrated by the installation of George Bush as president with only 90 minutes of deliberation or, more recently, the destruction of years of congressional effort to control campaign funding by giving corporations the rights of humans. The effect of judicial “law making” is already to be seen in the financial moral swamp of the current Republican presidential primary campaigns.
To ask courts to replace governance by the Legislature is like playing hooky from school – tempting and easy – but it damages the process of education. It is one thing to value rights set forth in the Constitution, but to create rights though the pens of unelected judges is to weaken democracy.
Devil’s Dictionary ?phrase of the week
People of color: A politically correct term describing non-Caucasian folks, by which politically correct people recognize one another. It is not to be confused with the politically incorrect term, “colored people.”
Rodney Quinn lives in Westbrook. He can be reached at rquinn@maine.rr.com.
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