Thursday, May 19, 2005

Background to Court Battle

American Spectator has a column by Roger Pilon of the Cato Institute, giving some background to the current battle over the courts. Link.
In the grand constitutional design, federal courts exist mainly to secure liberty, because that's what the Constitution does, especially since ratification of the Civil War Amendments crafted by the heavily Republican 39th Congress. Courts are supposed to keep Congress within its enumerated ends and to ensure that both federal and state governments respect our rights, whether enumerated in the Constitution or not. They've never done that consistently, of course, but as the independent, non-political branch, courts are charged with enforcing the Constitution's restraints on power.

Over the years, both parties have chafed under those restraints, and lashed out at the courts accordingly. But the first sustained, systematic attack came from New Deal Democrats, outraged that the Supreme Court was ruling their programs unconstitutional, sometimes 9-0. Finally, in 1937, Roosevelt threatened to pack the Court with six new members. The infamous scheme failed on the surface, but the Court got the message. It began essentially "rewriting" the Constitution -- removing limits on Congress's power, to make way for the modern welfare state, and politicizing the Bill of Rights.

That's when, on a grand scale, politics trumped law, the constitutional law of limited government. And it's never been the same since. With the floodgates opened, it soon became a majoritarian (or, just as often, special interest) free-for-all, with winners claiming the democratic "high ground" -- as if that's what the Constitution were about. Liberty and limited government gave way to majoritarian democracy. [...]

After the Democrats lose this battle, as they will, the focus will shift to the more civilized battle within the Republican Party and to the question whether the courts will give us the democratic constitution the New Deal Court invented, or the constitution of liberty the Founders set in motion. That will be one to watch.

It has been obvious for some time that, as the left lost control of the executive and the legislative branches, they turned to the courts to make law as they would want it. The Constitution gives Congress the exclusive power to make laws. When judges make laws, they clearly are violating the Constitution and violating their oath to support and defend the Constitution. I have been amazed that Congress, which also has the exclusive power to impeach judges, has sat back and watched as judge after judge encroaches on its power.

But that is a fight for sometime in the future. The need now is for the Senate to change its rules, to restore the system that stood until 2001 where a majority of Senators approved or rejected a judicial nominee. Then we can get at least some judges who believe in the Founders' constitution of liberty.


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