At the heart of this debate is something that Pepperdine Law Professor Douglas Kmiec suggested when responding to the court's decision in Roper v. Simmons, several days ago:
The court's decision fans the flames of a long-standing dispute over how the Constitution is to be viewed. Should it be treated as an enacted law-that is, something to be fairly interpreted and evenhandedly applied-or is it an open-ended document for the court to interpret as it sees fit? The first methodology is democratic self-government; the second-in which an elite body is invited to impose binding pronouncements about how the rest of us are to live-is something else.
Nor is this a new concern. It has been present since the founding. "It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions," said Thoman Jefferson. "It is one which would place us under the despotism of an oligarchy." James Madison, writing in The Federalist, wrote that the combination of legislative and judicial power in one body was "the very definition of tyranny." Abraham Lincoln, referring obliquely to the Dredd Scott decision in his First Inaugural Address, said, "[T]he candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal."
Defenders of the court often respond that an independent judiciary is critical the the operation of our government-which is true-but, it seems problematic to me to argue that usurping the legislative power by ordering tax increases is a legitimate power of an independent judiciary. Is it even possible to argue seriously that the founders, who fought for a decade to gain independence from England under the slogan, "Taxation without representation is tyranny", ever seriously intended for an unelected judge to levy taxes?
I believe that has it exactly right. Many people in this country may be quite content to live in an enlightened oligarchic tyranny, but I find it does not lead to my contentment. I kind of like the democratic aspects of our Constitution. (I know, I know, I'm nutty that way.)
Part of this comes from growing up in Missouri where one could see first hand that judicial power was untrammeled. The taxes that the judge imposed to pay for the Kansas City school districts were payed by the entire state. Why people in St. Louis or in poorer rural counties in Missouri, who were having their own difficulties paying for their own schools, were supposed to pay for Kansas City schools was never made clear. And in the end the whole thing turned out to be a swindle. Billions (with a "B") were put into the KC schools, and, man, did they build schools: modern buildings with wall-to-wall computer labs, sculpture gardens and artificial rivers, and all this at a time when St. Louis schools were having difficulty getting enough textbooks for their students.
But didn't the new schools improve the lot of the Kansas City students? Based on test scores the answer was a clear "no." Scores in the KC school plummeted. Maybe the kids were too distracted by the artifical river.
All the whole episode taught me was that the judge involved was not only a tyrant but also an idiot.
And that's the point. There are lots of idiots out there in all walks of life. At least when we have legislatures making the laws and raising the taxes, we the people have some hope of making sure the idiots do not rule the day and ruin our fate. But when you place that power in a judiciary far removed from democratic checks and balances you've got no chance.
I'm no libertarian, but I'd gladly accept an entire judiciary of libertarian leaning justices. In a heartbeat.
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