Wednesday, April 13, 2005

Judicial Despotism: Thomas Jefferson's Advice

"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." --Thomas Jefferson to Abigail Adams, 1804.

(The above and what follows is from the writings of Jefferson in the UVa Etext Center).

Jefferson is here referencing a Supreme Court decision made during his first term, that IT alone should make the final decision for all branches of government. That opinion has remained in force ever since.

Rule by despots was of course exactly what the revolutionary war had broken free of. So, in between building and rebuilding Monticello, and creating his Academical Village. Mr Jefferson applied his formidable talents to devising three constitutional solutions.

Two Branches Can Overrule the Third (1809)

"...when the three coordinate branches differ in their construction of the Constitution, the opinion of two branches shall overrule the third."

However he remarks that this approach was tried in the Constitution of Spain, which does not auger well since that constitution is no longer with us.

The Legislature Is Paramount (1815)

"...the Legislature alone is the exclusive expounder of the sense of the Constitution in every part of it whatever."

His argument is that if the legislature goes against public opinion, it will be removed and the judiciary can re-adopt the judgment that the legislature overruled.

Protest, and if That is Ignored, Impeachment (1821)

"Not by impeachment in the first instance, but by a strong protestation of both houses of Congress that such and such doctrines advanced by the Supreme Court are contrary to the Constitution; and if afterward they relapse into the same heresies, impeach and set the whole adrift. For what was the government divided into three branches, but that each should watch over the others and oppose their usurpations?"

Interestingly, he implies that none of these approaches requires a change to the constitution.

That being the case, it's a matter of practicality, and on that basis I'd go for the third option Then go after them for this:

The Supreme Court has, repeatedly, undertaken to import foreign law to decide American cases. First in Lawrence v. Texas, holding the Texas anti-sodomy law unconstitutional, and again in Roper v. Simmons (in which the Court prohibited execution of people for capital crimes committed while under the age of 18), the Supreme Court wrote about foreign law -- implying it influenced its reasoning -- but didn't have the courage to adopt its guidance openly.

Relying on foreign laws, openly or not, puts a bullet through the Constitution. Impeachment seems the only remedy. Go for it Congress.

The Brit solution is easier, since there is no written constitution. Simply have parliament overrule perverse judgments. I'd start with the one in which they released terrorists. Firing the terrorist-supporting Lord Hoffman would be good too.