- Levin, Mark R.
Men in Black.
Washington: Regnery Publishing, 2005.
ISBN 0-89526-050-6.
-
Let's see—suppose we wanted to set up a system of self-government—a
novus ordo seclorum as it were—which would be
immune to the assorted slippery slopes which delivered so many other
such noble experiments into the jaws of tyranny, and some dude shows
up and suggests, “Hey, what you really need is a branch of government
composed of non-elected people with lifetime tenure, unable to be
removed from office except for the most egregious criminal conduct,
granted powers supreme above the legislative and executive branches,
and able to define and expand the scope of their own powers without
constraint.”
What's wrong with this picture? Well, it's pretty obvious that it's
a recipe for an imperial judiciary, as one currently finds ascendant
in the United States. Men in Black, while focusing on
recent abuses of judicial power, demonstrates that there's nothing
new about judges usurping the prerogatives of democratically elected
branches of government—in fact, the pernicious consequences of
“judicial activism” are as old as America, winked at by each
generation of politicians as long as it advanced their own agenda
more rapidly than the ballot box permitted, ignoring (as politicians
are inclined to do, never looking beyond the next election), that
when the ideological pendulum inevitably swings back the other way,
judges may thwart the will of elected representatives in the other
direction for a generation or more.
But none of this is remotely new. Robert Yates, a delegate to the
Constitutional Convention who came to oppose the ratification of that
regrettable document, wrote in 1788:
They will give the sense of every article of the
constitution, that may from time to time come
before them. And in their decisions they
will not confine themselves to any fixed or established
rules, but will determine, according to what appears to
them, the reason and spirit of the constitution. The
opinions of the supreme court, whatever they may be, will
have the force of law; because there is no power provided
in the constitution, that can correct their errors, or
controul [sic] their adjudications. From this court
there is no appeal.
The fact that politicians are at loggerheads over the selection
of judges has little or nothing to do with ideology and everything
to do with judges having usurped powers explicitly reserved for
representatives accountable to their constituents in regular
elections.
How to fix it? Well, I proposed my own
humble solution here not so
long ago, and the author of this book suggests 12 year terms for
Supreme Court judges staggered with three year expiry. Given how far
the unchallenged assertion of judicial supremacy has gone, a
constitutional remedy in the form of a legislative override of
judicial decisions (with the same super-majority as required to
override an executive veto) might also be in order.
May 2005 