Take My Power … Please!
by Mac Johnson
HUMAN EVENTS
Posted Jan , 2006
As you watch the coverage of Samuel Alito’s confirmation hearings this week, keep in mind what a truly extraordinary position his congressional opponents’ are taking. They are afraid -- very afraid -- that he may give them more power.
Well, “give back” power might be a better way of putting it. But the fact remains that the big debate regarding judges today concerns how much deference they should give to the intent of elected legislatures when interpreting laws.
One side, judicial activism, essentially believes that judges should have enormous power to declare what a law should have been, and which laws must not be -- based on a careful consideration of their personal beliefs and the beliefs of the other well-connected overeducated urban intellectuals that make up their circle of influence. Also, they may consider foreign law, law trends, stuff that should have been in the Constitution, celebrity opinions, and what they would like to have in their obituary in the New York Times.
The other side of the debate, judicial restraint, believes that laws should be written by the democratically elected legislature, and that the job of judges is to interpret these laws faithfully and apply them on a case-by-case basis. Proponents of judicial restraint believe that judges should overturn or limit laws only when they clearly violate the limitations placed on governments by the federal or state constitutions, or when they conflict with the law of a superior level of government (e.g. a state law that attempts to reverse a federal law).
In other words, judicial restraint is the belief that voters should choose who makes the law, and judges -- no matter how smart or progressive or beneficent or caring or well-intentioned they are -- should simply apply law as it is written, unless there is a very compelling conflict with another law.
And this is the belief that so thoroughly frightens men like Senators Ted Kennedy, Patrick Leahy and Charles Schumer. Why are they so frightened of having the laws they write applied as they are written? Quite simply, it’s because they might then have to admit what they actually believe and be held responsible for it by voters.
Many observers have characterized the growing power of the judiciary as a case of one branch of government seizing power from another. But this is simply not true. The power has been willingly transferred, with a nudge and a wink as to what would be done with it.
Congress is hardly a weak institution. It is composed of the only legitimate federal lawmakers in our system of government, 535 accomplished men and women who also happen to be the most skilled camera-hogging gasbags this side of professional wrestling. Should they really believe, as a body, that their power had been usurped by another branch of government, they would have enormous ability to focus attention, scorn, resolution, and clarifying law on this perceived transgression.
You can see the Congress’ ample ability to defend and expand its turf as it conducts investigation after investigation into the president, implements countless controls on the states and cities, passes campaign finance and electoral controls on the voters and as the two halves of the Congress, Senate and House, battle constantly with one another over the exact wording, political credit and media airtime associated with innumerable bills.
Yet as the activist judiciary has struck down a legion of laws, invented whole clauses to the Constitution, ignored several actual clauses, and generally engineered the most controversial and divisive changes in our nation’s politics for 50 years, Congress has sat remarkably mute and still. This has occurred because many members of Congress, the same ones now opposing Alito, enjoy having an activist liberal judiciary to do the things that voters would not tolerate legislatures doing directly.
Inventing a right to unlimited and unregulated abortion, expanding the power of eminent domain to seizing private property for private ends, killing the death penalty by appeal and delay and degree, creating sexual “minorities” with mandated collective rights, internationalizing the laws of the United States with foreign (but always leftist) precedents, censoring all religion from the public square, bussing children to specific schools, invalidating popular ballot referenda, mandating taxpayer-provided benefits for illegal aliens, destroying federalism, protecting the privacy of foreign terrorists, and requiring reverse discrimination in hiring and promotion (as well as many, many other controversial decisions) are all acts that would get a politician in deep trouble at the next election.
But if a court “seizes” the politician’s power and mandates these changes from the bench -- as the courts have -- then nobody is held responsible. No one can be voted out. The politician can even rail against the decision while campaigning among the idiots back home, and then do nothing to fight it when re-elected. “Good Cop, Bad Cop” has become “Good Rep., Bad Judge”.
They get their agenda and you get told there is nothing anyone can do about it. A mysterious black-robed king just rode in and took all the power somehow. So just live with it -- and re-elect your impotent but right-minded congressman or senator.
The opponents of men like Alito and Thomas and Roberts and Scalia and Bork are not afraid of what they will do on the bench. They are afraid of what they won’t do. They won’t provide cover for politicians. They won’t dictate laws that could never be passed democratically.
Judicial restraint threatens Congress with a return of its delegated power and responsibility and an end to its collusion with activist courts. Congress will then have to govern openly and be held responsible for the laws they pass upon the people.
That is why Alito’s opponents are in a panic. Judge Alito has been described by colleagues as one of the most humble and politically restrained Judges ever nominated to the Supreme Court. He will judge with the laws Congress writes, not the laws part of Congress wants.
Plausible deniability is getting harder for Congress to find.
Mr. Johnson, a writer and medical researcher in Cambridge, MA., is a regular contributor to Human Events. His column generally appears on Mondays. Archives and additional material can be found at www.macjohnson.com.
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