Elective Despotism

In all the debate and discussion on the fate of Terri Schiavo there is one thing that truly scares me. It isn't the threat of impending euthanasia for the elderly or disabled. It isn't the politicization of a painful family disagreement and the life that hangs in the balance. It isn't the thought that Terri Schiavo might die or even that she might live for thirty years in a vegetative state. It's that our government is in the control of people who have no respect for the Constitution, that these people are driven by others who don't understand or support the separation of powers that protects us from tyranny. They don't understand that our government, our country, is a Constitutional Republic in which the will of the majority does not predominate but instead is limited by the Constitution, the fundamental law of the land. These people aren't the majority in the populace, but they control the majority of the politicians in the executive and legislative branches, and therefore they espouse majority rule.

They don't want majority rule if the majority is the American public. The majority of the American public does not support Congressional intervention in the case of Terri Schiavo. It does not support overturning Roe vs Wade. It does not support censorship, religious litmus tests for politicians, or discrimination against homosexuals. BUT, their elected representatives don't reflect the will of the majority - they reflect the will of this politically active, connected, funded minority. So this minority is more than happy to endorse a government that puts majority rule above the Constitution as long as the majority being counted is the elective body and not the people. What they want is "elective despotism". But I'm with Thomas Jefferson, who said in his Notes on the State of Virginia that "an Elective Despotism was not the government we fought for". That was true then and remains true today, and yet we are closer to "elective despotism" than ever before.

This support for, demand for, elective despotism is the threat that faces us. That minority who controls the governing majority believes in the supremacy of their will over the fundamental laws in the Constitution, a belief justified by citations of God's law and will. This, combined with the willingness of the politicians that count on the believers for their continued service in office creates the groundwork for elective despotism, a world in which the elected representatives of the people act in opposition to the law and in concert with their supporters goals.

Think I'm exaggerating, that the extremist right -religious and not - isn't calling on our elected representatives to ignore the law? Then check out these excerpts from conservative articles and blogs (apologies to the true conservatives for lumping these folks in with you):

"It is a mistake to believe that the courts have the ultimate say as to what a constitution means." AND "Governor Bush pledged to uphold the Florida constitution as he understands it, not as it is understood by some Florida judges."  Conservative grand daddy Bill Bennet in the National Review

"Governor Bush needs simply to intervene, to protect this woman's life, to look the court in the eye and say, as President Andrew Jackson did, "You've made your ruling. You enforce it." They can't enforce it, of course, because they have no executive power to do so." AND "The covert assumption of the executive power by the judiciary in the Schiavo case has become an ideal example of the judiciary's continuing assault on the moral sense and sensibility of our people, an assault that continues, in this case, in contravention of the will of the people as expressed in Florida in the state legislature, by the governor, now by the Congress of the United States."  Renew America post in which the usurpation of the judiciary's role as interpreter of the law is justified on the basis of a the separation of powers, amazing logic acrobatics.

"What was supposed to be the "least dangerous" branch has become the most dangerous – literally to the point of ordering an innocent American woman to die, and willfully disregarding congressional subpoenas. They can't be stopped – solely because the entire country has agreed to treat the pronouncements of former ambulance-chasers as the word of God."  Starved for Justice, Ann Coulter

"True, there is an arguable federalism issue: whether taking the issue out of a state's jurisdiction is constitutional. But it pales in comparison with the moral issue."In Facts First, Fred Barnes, the Editor of the Weekly Standard, makes it clear that the law is subordinate to morality - the question is "whose morality?"

The argument being made is that the executive and legislative branches aren't subject to the rule of the judiciary, that moral law takes precedence over civil law. This challenge to the judiciary is an extension of the lamenting from the right over activist judges (an irony here since the only way their efforts to save Schiavo would have succeeded would be if the federal judges were activists and ignored legal precedents). I've been watching the extreme right as they gear up to attack the judiciary and stack the bench. It's a priority for them, as high on the list as overturning the right to abortion and preventing gay marriage. It's just not as public.  Consider this:

• Jerry Falwell wants to pass "many amendments" to the Constitution to put 'important issues' out of the reach of judges. (See here.)
• James Dobson of Focus on the Family is threatening Democratic Senators with campaigns to oust them in the next election unless they support "strict constructionist" nominees for the Supreme Court. (See Arran's Alley post.)
• Part of the Republican's agenda is to reform government, which includes limiting the judiciary's ability to rule on the constitutionality of specific legislation and impeaching judges who make unpopular legal decisions. (See here.)
• In early April, experts on "judicial tyranny and the attack on religious faith are hosting a meeting in DC to discuss how "people of faith" can fight back against judicial activism. Who will be speaking? None other than Tom DeLay. He'll be joined by Phyllis Schafly, Sen. Brownback, and former and disrobed Alabama Chief Justice Roy Moore. (See here.)

It's no secret that the extreme right wants to undermine the judiciary. But I'm not sure the left is paying attention to this latest organized effort to remove barriers to a government that is subject to "natural law" (i.e fundamentalist Christianity).

The judiciary is the weakest branch of the federal government. It is tasked with settling federal and interstate disputes and interpreting the law. There is no provision for rejecting the court's interpretation of the law. if the executive or legislative branches don't agree, they are free to pass a law or sponsor an amendment to the Constitution. They are not free to disregard the law.

The extreme right wants the other branches of government to disregard the law as interpreted by the judiciary. That's exactly what happened when Congress intervened in the Schiavo case. They disregarded the Constitutional separation of powers and the Constitutional rights of the federal vs state courts. They posit that when an executive leader or legislative body disagrees with the legal interpretation of the courts, they are duty bound to ignore the courts. They claim that the judges are not interpreting the law, but that instead they are imposing their own morals upon the law. They are using the law to enact their own views, i.e. they are activist judges.

It's not like the concept of activist judges is new one. The founders were well aware of the risk of activist judges. Ironically, their concern was that judicial decision would be made with an eye towards the political or personal - that they would reward their supporters with favorable judgments or base their judgments on what they thought would ensure tenure on the bench. It is for this reason that federal judges are given life-time appointments, to reduce the possibility that they will be "activist judges". Now the Republicans want to undermine this by impeaching judges whose decisions they don't like. There is a provision for impeaching judges but it's based on moral conduct, not agreeable decisions.

I wanted to understand the role of the judiciary so I went back and read some of the Federalist papers. The most relevant ones were numbers, 47, 48, and 78. The last deals specifically with the possibility of activist judges. The others address separation of powers. It's most interesting to me that these founding fathers considered the legislative branch to be the most likely usurper of power.

Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful, members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. (Translated: Is it enough to simply define the boundaries between the branches of government? Experience tells us no. The weaker branches of government need more protection from the stronger branches - you see, the legislative branch won't limit itself in its power grab.)

A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations. (Translation: To be honest, we must admit the the legislature hasn't forgotten that hereditary government is a danger to liberty. But they don't see that if they usurp the power of other branches of government, they'll bring tyranny.)

The Federalist No. 48, JAMES MADISON, FEBRUARY 1, 1788

Madison gives us further warning of impeding tyranny with this comment, which should be read with the understanding that the power of the executive and legislative branches is already concentrated in the hands of an extremist minority.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. The Federalist No. 47 JAMES MADISON, FEBRUARY 1, 1788

This, then, is our challenge. To fight the impending tyranny that Madison warned against, to fight the elective despotism that Jefferson refused to accept. Call it theocracy, tyranny, despotism, wing-nuttery. Call it anything you want. But don't take it lightly, don't assume it can't happen here, don't assume that someone else will stop them. The events surrounding the Terri Schiavo case bring to light the extremism we face and the disregard for the law embraced by the executive and legislative branches of government. If we don't protect the judiciary's independence then all is lost.

For more relevant excerpts from the Federalist No. 78 on the separation of powers and activist judges, go to the jump...

Excerpts from The Federalist No. 78, ALEXANDER HAMILTON, May 28, 1788

"But in a representative republic, where the executive magistracy is carefully limited; both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions."

"We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments."

" Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal."

" Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. "

" This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security."

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

" Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. "

" There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."

" It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

"Nor does this conclusion by any means suppose a superiority of the judicial to the  legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

"It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body." (Translation: It doesn't hold water to say that the courts are imposing their own views on the constitutionality of legislation. That could happen where two statutes contradict each other, or it could happen in every judgment made by the courts. The courts must declare the legal basis for their judgments. If they impose their views in their interpretations, it's no better than if the legislature does the same. Crying out that judges are doing so is the same as saying that the judiciary shouldn't be independent.)

"If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community."

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