Monday, October 24, 2011

Constitutional bibliolatry

So once again those experts on American constitutional history, the Republican presidential contenders, have been explaining what the Founding Fathers really intended.
According to Professor Newt Gingrich, the Founders, in creating an independent federal judiciary, actually meant a federal judiciary whose independence only would be guaranteed so long as it issued rulings that Professor Gingich agrees with. When they issue rulings Professor Gingrich disagrees with, they are "rogue courts" that Congress should reign in by cutting their budget, disestablishing their jurisdiction, or (according to those other constitutionals scholars Rick Perry and Michele Bachmann), have their terms limited or salaries reduced.

Of course, the Constitution, that perfect enshrinement of every earthly wisdom, forbids Congress to reduce judicial salaries and provides for lifetime tenure of judges, but never mind. It's the principle that counts. And the principle is that the rule of law, the separation of powers, equal protection, due process, and other things you might have thought were the basis of ordered liberty, in fact apply only until judges start ruling in ways you don't like.

At the risk of stating the obvious, it continues to be a source of a certain wonder to me that (a) the Founding Fathers are viewed by the Tea Partyniks et al. (and their favorite paid speaker, Justice Scalia) as the last word on all controversies of our day and (b) that they are viewed as a uniform chorus all  singing the same tune of limited government and dismay over federal "overreaching" as those guys wearing the tricorn hats and brandishing their pocket copies of the Sacred Word running around today.

At the risk of really stating the obvious, the creators of the Constitution recognized themselves that times change, and thus provided a mechanism for their creation to be amended. It's remarkable that some fundamentalist GOPs have been denouncing the income tax, the Fourteenth Amendment, and other constitutional changes on the grounds that the Founding Fathers would be "appalled" by such developments. Of course the Founding Fathers also enshrined in the Constitution the protection of slavery, the right of slave owners to recover runaway slaves, and the astonishingly anti-democratic provision to give slaveowners as much as 1.75 or so votes for every voter in the northern states by including 3/5 of the obviously nonvoting slave population in apportioning representation in Congress and the Electoral College. I think most people would agree it's a good thing that later generations eventually showed themselves wiser and more moral than the Founders on that little matter of holding their fellow human beings in chattel slavery and constitutionally protecting the political hegemony of slave power.

But my real point is that even if we do mean to appeal to the authority of original intent of the Founders as a useful arbiter of what goes today, there was a sizable body of opinion among some of the most influential and wisest of those men that is almost the diametrical opposite of the claims Gingrich et al. are advancing. John Adams, Alexander Hamilton, George Washington, and James Madison all favored a very strong federal judiciary precisely because they wanted to see the power of the states weakened. They and their fellow Federalists argued that as with all general courts in the English-American tradition, English common law ran through the U.S. federal courts; they believed that in time the federal courts would in fact supplant the state courts in the administration of justice. They certainly believed that the federal courts had concurrent jurisdiction in common law crimes with the state courts. Hamilton wanted the federal court districts deliberately drawn not to follow state lines to emphasize the national character of the federal courts. They all believed that the state courts were corrupt, inept, amateurish, untrustworthy, politically malleable, and inconsistent.

The reason they favored lifetime tenure and insulation of the judiciary from the electorate was precisely because they saw the dangers of politicizing the judiciary and making it a creature of the political passions of the moment — forces fundamentally antipathetic to the rule of law. Many of the states in a wave of populist democracy following the Revolution instituted elections for every post including judgeships. It was no coincidence that the framers of the Constitution chose a completely different tack, and prescribed the appointment of judges and protected their independence with lifetime tenure. It is thus doubly ironic that the GOP history buffs should be denouncing the federal courts for defying popular sentiment, for being "unelected" judges, for being "elitists" (my favorite idiotic expression: I don't know about you, but I kind of like the idea of judges who have gone to good schools and studied hard).

It is one of those almost childishly simple lessons of morality that the framers all understood, that a system of government built on true liberty and the rule of law requires respect for the process even when the result is one we may from time to time disagree with. The populist, know-nothing rabble-rousing espoused by Gingrich in particular to vilify and incite contempt for the federal judiciary is exactly the sort of political gutter tactics that the Framers, whom he pretends to revere, had the greatest contempt for and fear of. If they want to show that they really respect the accomplishments of the Founders, they need to stop brandishing the Constitution as a rhetorical applause line,  and read the damn thing.


Having just emerged from several months of writing another book in the hopes of paying the light bill, I am once again peeking above the parapet and wondering if it's not better to go back to cowering. But I will try to post from time to time once again on this blog as my uncontainable irritation moves me.

I have made one change, however: no more comments! You got something you think is worth saying, get your own blog.