March 28, 2010

AMERICA'S ORIGINAL SIN:

Keeping a Republic: Overcoming the Corrupted Judiciary (The Honorable Robert Bork, 2/24/10, Heritage Foundation)

A republican form of government is about legitimate processes rather than results, except in those few instances in which the nation has adopted self-denying ordinances, such as our Bill of Rights, that rule out certain results. Obviously, those ordinances must be carefully construed so that they are effective but do not encroach on the legitimate powers of majorities. A corollary is adherence to the rule of law, for only such adherence can ensure that the will of the majority is not altered or subverted in its application to particular cases so that the power to govern is effectively denied to the majority.

Perhaps something like this is what Franklin had in mind. If so, he may have been worried about the displacement of majorities by oligarchies. Franklin was right to suggest that the success of the Republic was contingent--so it was, and so it is, and so it will always remain. There will always be people, often in well-funded organizations, who prefer the victory of their interests to republican processes. The danger becomes acute when the citizenry no longer appreciates the virtues and vulnerabilities of a republic. As Walter Bagehot put it, "The characteristic danger of great nations, like the Romans and the English, which have a long history of continuous creation, is that they may at last fail from not comprehending the great institutions which they have created."

In America's case, the great institution we have created and may be failing to comprehend is judicial supremacy: the power we have accorded courts to correct, and do so with finality, the other branches of the federal government and all branches of state governments. The judges need only announce that these other branches and governments have strayed from the principles contained in our written Constitution. Never mind that the power of judicial review is nowhere mentioned in that Constitution or that that power was established in very dubious fashion in Marbury v. Madison (1803).

The nation ultimately acquiesced, and a great institution was born--great in its capacity to do much good but also dangerous when it employs its powers to accomplish ends outside the law. After all, after Marbury came Dred Scott (1856), which denied the federal government the power to prevent slavery in any state or territory or to permit a state to bar slavery within its borders. Perhaps it should have been seen as ominous that these two cases, one greatly admired, the other now universally despised, were both instances of what today we call judicial activism.


If you accept Marbury as legitimate you yield the Republic.

Posted by Orrin Judd at March 28, 2010 5:46 PM
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