The Law Is What We Say It Is

Just when you thought they couldn't get any more dangerous, here come the Republican presidential contenders with their unique brand of American exceptionalism. In this case, though, it means that intelligent debate is the exception.

Rick Perry left open the possibility that the issue over President Obama's birth certificate issue is not exactly closed by not specifically answering the question. Instead, Perry said that "It's a distractive issue," without going on to say that he was making it a distraction by not saying that, yes, the president was born in this country.

Meanwhile, six of the eight would-be commanders-in-chief would  "want to wipe away lifetime tenure for federal judges, cut the budgets of courts that displease them or allow Congress to override Supreme Court rulings on constitutional issues." That's according to this Huffington Post report. Only Mitt Romney and John Huntsman have stayed away from direct attacks on federal judges.

The right's antipathy towards judges would seem to be counterproductive for conservatives. From the article:

Barry Friedman, a New York University law professor who has written a book about the relationship between public opinion and the high court, said he is puzzled by the effort to take federal courts out of the picture. He said that would increase the influence of more liberal-leaning state courts.

"The wonder of it coming from the Republicans now is that we have what is easily the most conservative Supreme Court in many, many years. This is nothing more than red meat they throw to the conservative base," Friedman said.


The New York Times also weighed in on this issue with an article that said, in part:


Gov. Rick Perry of Texas favors term limits for Supreme Court justices. Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage. Newt Gingrich, the former House speaker, and former Senator Rick Santorum of Pennsylvania want to abolish the United States Court of Appeals for the Ninth Circuit, calling it a “rogue” court that is “consistently radical.” 

And for people who say that they interpret the Constitution as the Framers intended, the candidates certainly are undercutting one of the basic tenets of that document. The independence of judges was such an important concept that Alexander Hamilton wrote in Federalist Paper number 78 that,  

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution" and,  

"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves..."

Talk about ill humors. It seems that the candidates need to take some time to actually read the founding documents. Then they might be in a better position to run the country.


Hamilton also addressed the issue of those who objected to the Constitution because, like the Tea Party, they believed that the courts would ultimately take power from the legislature. His answer comes in Federalist 81:

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. 

It's a phantom argument. The courts simply don't have the legal power nor do they have the force to take power from Congress. The right wing would have us believe that court rulings on desegregation, school prayer, abortion, contraception, civil equality and governmental authority belie this argument and prove that the Supreme Court has acted like a legislature. Of course, they don't see court decisions that treat corporations like people or that reinterpret the right to a gun as an individual right with no regard to the militia clause of the second amendment as offensive to both legislative and constitutional intent.

This is a radical reinterpretation of the law that will have profoundly negative effects on American society and represents the apogee of conservative legal thought that has been scaling the judicial heights since 1981. A Republican president would be able to solidify a conservative majority on the Supreme Court with just one appointment. A Republican Congress could conceivably pass legislation that severely limits the court's ability to even decide certain types of cases.

That is something we must seriously think about between now and next November.