The 5 to 4 Constitution: why kritarchy and the rule of law are mortal enemies

If more or less borrowing the artificial word "democracy" from Greek gives us a term meaning "rule by the people," the actual form of government we in the United States (and Canada as well, btw) might well be described as "kritarchy-" "rule by judges."

The U.S. Constitution's vaunted "balance of powers" has turned out to have a fatal flaw: an over-developed power of judicial review, which some hold to have originated in an attempt by the Supreme Court to save face in the case of Marbury v. Madison. Others argue that Marbury merely made use of a principle inherent in English law.

In either case, Article III of the Constitution, which deals with the judiciary, does not grant the Supreme Court any authority to nullify laws duly passed by the Congress or by state legislatures on the ground that they are unconstitutional. But once it became accepted that the Court had such a power- a "super-power," if you will, potentially overriding and annihilating those expressly granted the other two Branches by the Constitution- the balance of powers was effectively a dead letter. Rather than being confined to interpreting the law as it stood, the courts- and the Supreme Court in particular- became in practice a kind of super-legislature, able to "discover" obscure and even imaginary principles in the Constitution making almost anything either legal or illegal almost  at whim. More even than that, the Supreme Court became in practice a kind of permanent, perennial Constitutional convention, able to effectively establish, abolish, or alter the provisions of the Constitution itself at will, by simple majority vote. Nor was it only Congress whose status under the Constitution was threatened by the power of the Supreme Court; the powers of the Executive Branch, too, were exercised not as a matter of vested Constitutional right, but at the pleasure of the Court- which, under the guise of enforcing even extremely dubious constitutional principles, could in effect restrain or compel the Executive to do or to refrain from doing anything it saw fit.

This represents a remarkable concentration of power in the hands of the Court, especially in an allegedly constitutional Republic. And the Court has for the most part exercised its extraordinary de facto power with admirable restraint,  intervening only rarely to overtly usurp the powers and functions granted by the Constitution to the other branches or to exceed its brief in other ways. In many cases, such as Nix v. Heddon (in which the Court affirmed a lower court ruling that- botanical science be damned!- the tomato is legally  a vegetable rather than a fruit), the Court's exceeding of its Constitutional role has often been nothing more than silly and a little bit embarrassing. But in others, such as Dred Scott v. Sanford and Roe v. Wade, the Court's rulings have done nothing less than to effectively circumvent  the Constitution itself (specifically, the Equal Protection clause of the Fourteenth Amendment) by declaring an entire class of human beings not to be persons before the law, and therefore not to have any rights under the Constitution which the law is bound to recognize! The thought processes of Roger Taney and Harry Blackmun had more in common than Justice Blackmun himself might have realized, or than his admirers might care to admit.

At the same time, It is fascinating-if appalling- that  Justice Kennedy actually cited that very clause last week  in order to mischaracterize the question of which kinds of sexual relationships have such significance as to constitute  the legal basis of a marital relationship as a question of discrimination against the persons of gays and lesbians as persons!

It cannot be denied that in many cases, such as those relating to civil rights and matters of race,  the Court exercised that power beneficently, giving legal force to principles clearly inherent in the Constitution but which a less-than-enlightened political structure refused to recognize. But in too many cases, any connection between the Court's rulings on such matters and the law- or even elementary logic- is hard to establish. It was not for nothing, for example, that the strongly pro-choice law clerks at the Supreme Court reportedly called Justice Blackmun's badly-reasoned decision in Roe "Harry's abortion" behind his back!

In dissent from that bizarre decision, Justice Byron White cogently wrote,

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court

Quoth Chief Justice William Rehnquist:

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today

There can be no question but that in a limited number of critical cases,  judicial activism has resulted in far-reaching rulings with extremely dubious legal and even logical basis, which seem to have been based primarily on the justices' personal political and social beliefs. In effect, they have represented exercises of pure political power which have overridden the Constitutional prerogatives of the states and mined the Constitution for implications which would have scandalized those who wrote it in order to bring about legal results whose only objective virtue is that they correspond to what a majority of the justices believe that the law ought to say. The most recent example of this practice is the ruling only last week by which the Court overturned a Federal law duly passed by Congress in order to compel the Executive Branch to extend the legal benefits of marriage to same-sex marriage-
a concept unknown to common law, and recognized by only a minority of the states. And this is being heralded, of all things, as a victory for state's rights!

Worse, the Court stopped just short of declaring marriage to a person of the same gender as oneself a Constitutional right. While declining to actually render such a ruling, it also declined, by a vote of 5-4, to hear an appeal of a Federal court ruling which reached precisely that conclusion, and overturned the prohibition on same-sex marriages enacted by the people of the state of California through referendum in Proposition 8.

Roe subjected the nation to a nearly unprecedented degree of political polarization yet unhealed after more than forty years. Common sense would have suggested that a wiser course would be to have allowed the political process to sort out the abortion question, as it has in every other Western democracy, rather than intervening arbitrarily to decide an issue upon which no political consensus existed in large measure precisely because there was no consensus to the contrary. Similarly, whatever the future of the debate over same-sex "marriage," it would be hard to imagine that an eventual consensus affirming the practice will not be similarly delayed by an action, based on neither law nor logic but rather on the personal preferences of certain judges, upon a bitterly-divided nation. And there certainly can be no doubt that such an outcome would provide further evidence that, like Canada, the United State today is a kritarchy rather than a democracy.

Small wonder that a new Rasmussen poll shows that the Supreme Court is at its lowest point of popularity in history. Only 28% of us, it seems, believe that the Court is doing a "good" or "excellent" job; 30% of us describe the job it's doing as "poor." This represents a two percent deterioration in the Court's standing with the public since before its recent flurry of dubious rulings.

It would seem that the kritarchy isn't all that popular with the demos.

There is an important point here. What do Roe, the recent gay "marriage" rulings, and nearly all of the modern abuses of the power of judicial review have in common?

5 to 4 majorities.

After all the decades of nation- dividing controversy over the activist Courts of the past forty or fifty years and the decisions they've rendered, the hold of the judicial radicals upon the Court remains a margin of only one vote.

It has become popular (and not completely without reason) for those on the Right to express cynicism about the Republican party. Although for somewhat different reasons, I share that cynicism. But before any of us despair of either the GOP or the electoral process itself as means for staving off the utter collapse of our system and even of our culture, let us all bear it firmly in mind that we are the retirement of one liberal Supreme Court justice and the election of one Republican president away from the prospect of being on the winning rather than the losing side of that 5-4 majority. 

One defense yet remains against the usurpation of the prerogatives of the other two branches of the government, the individual states, the people, and the Constitution itself by the kritarchs:  judges who will let the Constitution be the Constitution, the law be the law- and be content themselves to merely be judges.

And we may well be only one presidential election away from achieving that.

But the opportunity may be lost forever if we don't elect a president in 2016 who conceives of our nation as a democratic republic in which the words of the Constitution are the ultimate authority on what is or is not constitutional, rather than the imaginations and preferences of the kritarchs.


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