Thursday, February 05, 2004

Governor Mitt Romney, writing today's Wall Street Journal editorial, quotes Abraham Lincoln criticizing the Dred Scott decision.
Here is what Lincoln said: "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 instant they are made in ordinary litigation between parties in personal actions 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."
How apt. I can't say how much it bothers me that the Supreme Judicial Court of Massachusetts has radically changed the meaning of the state constitution, reducing the state Senate to asking whether gay marriage or just civil unions is constitutional, as redefined by the S.J.C. (Answer: gay marriage.) It's a ridiculous system: passing a constitutional amendment only requires four votes.

If judicial tyranny has been around since at least the 1850s, then will we ever be rid of it? Two proposed structural solutions to the problem, which require constitutional amendments, are electing all justices for fixed terms and giving legislatures a two-thirds veto over courts. (Actually, some state supreme court justices are already elected.) At the federal level, another proposed solution is for Congress to use its power of setting the Supreme Court's jurisdiction to forbid the Court from ruling on certain subjects. The first solution is the most democratic, but also the most hazardous to the rule of law, as some laws could come to mean whatever is politically convenient. The second solution would essentially be a weakening of the constitutional amendment process to a simple two-thirds vote of the legislature; amendments aren't supposed to be easy. The third solution is itself of dubious constitutionality, and it would allow Congress to effectively change the U.S. Constitution unchecked by the judicial branch. Ideally, we should just appoint originalist judges, but, at least at the federal level, that requires defeating Democrat filibusters.

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