How to Stop the Tyrannical Judiciary

Ben Shapiro
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Posted: Aug 12, 2010 12:01 AM
How to Stop the Tyrannical Judiciary

Quick quiz: What do we call a system of government in which an unelected cadre of self-professed wise men make decisions for a nation of millions, all the while insulting those millions as ignoramuses?

We used to call it tyranny. Now, apparently, we call it an "independent judiciary."

At least that's the way the left sees it. The role of the judiciary in this country, according to liberals, is to act as a sort of super-Senate, qadis on the hill who decide based on whim and fancy how the rest of us should live. The American people are benighted morons; the judiciary is full of brilliant moral thinkers. They must rule us.

This perspective, of course, would have sickened the Founding Fathers, who established an independent judiciary in order to adjudicate legal disputes, not to rewrite laws at will. In fact, the founders recognized the threat of judicial omnipotence, which is why they wrote the Constitution so as to limit the judiciary: The judiciary cannot control its own purse strings, nor can it even define its own jurisdiction. Under Article III of the Constitution, Congress' power over the judiciary doesn't end with up-or-down judicial nominee votes -- Congress actually has the power to take whole areas of law away from the judiciary completely.

Congress can create inferior courts, which means it can eliminate them, too. As to the jurisdiction of those courts, Congress can define it. Congress can even define the jurisdiction of the Supreme Court: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." In other words, Congress can carve out exceptions and regulations taking full swaths of judicial oversight away from the judiciary.

This is not an accidental inclusion in the Constitution. It was an integral part of the document's construction. The Founding Fathers built the government around the principle that powers would check one another; the supposed exception to that rule has always been the judiciary, which remains unchecked. But it wasn't supposed to remain unchecked -- Congress was supposed to have the power to check the judiciary. Anti-federalist Robert Yates feared that Congress would not be able to do anything about such a usurping judiciary: "There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself."

Alexander Hamilton answered that if judges "should be disposed to exercise WILL instead of JUDGMENT ... [that] would prove that there ought to be no judges distinct from that [legislative] body." In other words, the legislature could trump the judiciary just as easily as the judiciary could issue rulings trumping the legislature.

It's time for the legislature to trump the judiciary. A simple, two-step process would do it. First, Congress need only invoke its power over appellate jurisdiction and remove it for all federal cases involving issues such as abortion, same-sex marriage and immigration -- in fact, Congress has already limited federal judicial jurisdiction in certain immigration cases. When the courts declare such legislation unconstitutional, Congress can simply ignore them or defund the courts accordingly.

This is hardly a radical suggestion. It is well within the constitutional scheme, which foresaw gridlock and friction as a central goal to checking the growth of government.

No doubt liberals will be dismayed. After all, they worship the judiciary that magically creates liberal-agenda "rights" out of whole cloth. Their chief counterargument to the populist constitutional argument will be Brown v. Board of Education, which, they feel, justifies all intrusive judicial intervention into the republican system for all time. Brown v. Board was, of course, a morally correct decision. It was also utterly ineffective; only the Civil Rights Act of 1964 truly desegregated America, as liberal legal scholar Gerald Rosenberg wrote in his seminal work, "The Hollow Hope." And for every Brown v. Board, there is a Plessy v. Ferguson and a Dred Scott.

The true defenders of the Constitution must be the people. The courts pretend to care about the Constitution, but in truth, they care only about their own political preferences. Our elected officials aren't much better -- but at least we elect them. Our only hope for a true republic of limited government and popular sovereignty lies in ourselves. Any delegation of that ultimate constitutional power to an oligarchy of unelected lifetime tenure politicians means that we no longer live under a system that retains the consent of the governed.