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Jewish World Review August 10, 2010 / 30 Menachem-Av, 5770 We're nearly at krytocracy By Jack Kelly
http://www.JewishWorldReview.com |
The majority on the Supreme Court was reaching the "desirable" result in the landmark case of Brown v. Board of Education, his clerk said to Justice Stanley Reed.
This observation was irrelevant and dangerous, Justice Reed replied, because if judges voted for results merely because they privately struck the judges as desirable, the Court would overstep its jurisdiction and set the country on a path to krytocracy.
Krytocracy is government by unelected judges who substitute their policy preferences for those of elected officials and citizens. Two recent decisions suggest we may nearly be there.
On July 28, federal district judge Susan Bolton blocked enforcement of Arizona's immigration enforcement law, which had won overwhelming approval in the state legislature.
In the 2008 election, voters in California approved an amendment to the state constitution which declared that only marriages between one man and one woman would be recognized in the state. On Aug. 4, federal district judge Vaughn Walker, who is openly gay, ruled Proposition 8 violated the U.S. Constitution.
In both cases, the legal reasoning was specious.
"Acting in keeping with federal law, court precedent and a Department of Justice legal memorandum...Arizona said its law enforcement officers would henceforth check the legal status of suspected illegal immigrants during the course of a lawful stop or arrest," wrote National Review's Rich Lowry. "To conclude that the law likely will be struck down for 'pre-empting' federal regulations, Judge Bolton had to engage in complicated judicial gymnastics, which she nailed with all the skill of a Mary Lou Retton in robes."
Judge Walker's decision essentially invents a constitutional right to same sex marriage. No such provision exists in the written document. And no serious person believes any of the Founding Fathers thought it should.
When White House Press Secretary Robert Gibbs declared the vote in Missouri in which 71 percent rejected Obamacare was "of no legal significance," it's because he expects a federal judge eventually to override the will of the people.
Mr. Gibbs may be proved right. But I suspect the Founders would be as surprised to learn the Constitution they wrote requires you to buy health insurance as they would be to learn they had given their blessing to same sex marriage.
Our Founding Fathers were really smart guys. But they made a big mistake when they granted life tenure to federal judges. That's set the stage for krytocracy.
Their reasoning was sound enough. The Founders didn't want politics intruding into judicial decisions. So they said Congress couldn't cut the pay of judges, and granted them life tenure so they couldn't be replaced wholesale after each election.
But life tenure coupled with judicial review has permitted the federal judiciary to become a krytocracy. Liberal judges said the Constitution was a "living document," and then proceeded to disembowel it.
"The great object of my fear is the federal judiciary," Thomas Jefferson warned. "Advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one."
The Founders can't really be blamed for the abuse of judicial review, because the Constitution makes no provision for it. This was a right asserted by Chief Justice John Marshall in Marbury v. Madison (1803).
It's probably too late to do much about judicial review. But it's not too late to do something about life tenure.
I've argued for terms limits for Members of Congress. If they were restricted to 12 consecutive years in office, they'd be more likely to represent us, less likely to represent special interests.
But that would require a constitutional amendment. So while we're at it, we should abolish life tenure for federal judges, and replace it with 12-year terms. Judges could serve more than one term, but they'd have to be renominated by the president, reconfirmed by the senate.
Jefferson would have made the terms shorter. "Let the future appointment of judges be for four or six years, and renewable by the President and Senate," he wrote in 1823. "This will bring their conduct at regular periods under revision and probation."
If we're to preserve our democracy, we must restore the preeminence of the elected branches of government.
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JWR contributor Jack Kelly, a former Marine and Green Beret, was a deputy assistant secretary of the Air Force in the Reagan administration.
© 2009, Jack Kelly |
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