judiciary

The Bigger the Government Is, the More Corrupt

Glenn Reynolds’ column on the Obamacare arguments hits on an oft-ignored theme:

The subjects entrusted to the federal government by the Constitution — those largely “external” powers — simply don’t lend themselves to corruption. On the other hand, when the government lays a heavy regulatory hand on almost every business and industry, the temptation for those regulated to buy off the regulators — or to simply buy “protection” from them — becomes much greater. That has increasingly been the pattern in recent decades, even as, not so coincidentally, the public’s trust in the national government has steadily declined. As P.J. O’Rourke famously said, when buying and selling are controlled by legislation, the first things to be bought and sold will be legislators.

The truth of this seems obvious once stated, but it’s not stated often enough.  Conservatives, who expect the government to be corrupt, don’t bother with it much (although Jonah Goldberg devotes and entire chapter of Liberal Fascism to it). And as it contradicts the essential element of Progressive ideology — that Leviathan fights against corruption — proggies can’t acknowledge it.

So the beast grows apace.

 

Let’s Not Start Pulling Each Other’s Taffy Just Yet…

It’s been fun enjoying the schock and upset of proggies at the possibility that Obamacare could be smacked down. John Podhoretz summed up decades worth of conservative griping about the left in a single paragraph:

They’re so convinced of their own correctness — and so determined to believe conservatives are either a) corrupt, b) stupid or c) deluded — that they find themselves repeatedly astonished to discover conservatives are in fact capable of a) advancing and defending their own powerful arguments, b) effectively countering weak liberal arguments and c) exposing the soft underbelly of liberal self-satisfaction as they do so.

As someone who’s been more or less on the right since he was 18 years old, I can’t really argue with that. I just wonder if the celebration is premature. Yes, the oral arguments look promising. But for all we know, Sotomayor is working her wise-Latina charm on Kennedy and Roberts. We don’t know what the Supremes are going to say, based on what we’ve seen them do. Until we know, we might want to keep our powder dry.

Because if the vote goes the other way, the proggies will return all our mockery and amateur psychoanalysis ten fold. And I can’t say that I’ll blame them.

New Jersey is a Soviet Republic.

Which is to say, it is ruled by an ideological oligarchy that passes decrees which every other person must obey. The legislature and governor are vestigial organizations possessing mostly ceremonial duties.

As chief justice for nine years, Vanderbilt helped forge the New Jersey Supreme Court’s expansive understanding of its role. For instance, he wrote the majority opinion in Winberry v. Salisbury, a decision that gave the court itself, not the legislature, the power to make rules for the state judiciary. That ruling set New Jersey’s judiciary apart from the court systems in most other states—as well as from the federal judiciary, which ultimately derives its authority from Congress. Some critics have even argued that Winberry violates the U.S. Constitution’s guarantee that every state must have a republican form of government. “Under the doctrine ofWinberry v. Salisbury,” wrote New Jersey lawyer Anthony Kearns in a 1955 ABA Journal article, “we can only conclude that laws of practice and procedure are exclusively in the hands of men who are not elected.”

Read the Whole Thing, and recognize that the worst kind of tyrant is the one who believes himself a savior.

Newt Reminds Us That There are Three Branches of Government

Methinks Newt is tired of being outflanked on the right: (h/t: Memeorandum)

Then, in what amounted to a 35-minute seminar on constitutional history, Gingrich argued that the judicial branch has grown far more powerful than the nation’s founders ever intended and said it would be well within the president’s authority as commander in chief to ignore a Supreme Court ruling that he believed was incorrectly decided.

He cited four examples in presidential history, including Abraham Lincoln, whose administration, Gingrich said, refused to enforce the Dred Scott decision by the Supreme Court on slavery and then actively flouted it by emancipating the slaves with an executive order.

Given the sort of things judges feel empowered to do these days, it’s hard to find this as radical as many of the commenters do. Protein Wisdom:

In short, the Judge has now institutionalized the idea that a proper education is tied to how much money is spent on it — this, despite years of evidence showing that per capita spending on education doesn’t correlate to better educational performance.

And she has also decided that the power to tell the state that it isn’t spending enough rests not with the voters or their representatives in the legislature, but rather with her.

Especially because Gingrich is basically right: Lincoln ignored the Dred Scott decision, as Andrew Jackson ignored Worcester v. Georgia (the Cherokee case). Judicial authority requires executive obedience to be meaningful.

The balance among the three branches requires care. Without the capacity of the judiciary to put the breaks on the political branches, unliked minorities can be made scapegoats, and the liberties guaranteed by the Constitution become subject to plebiscitical passion. But without some discreet capacity to ignore the judiciary, the tiniest of minorities (the legal profession and judges) can run roughshod over the rest of us, and the bedrock liberty of the American Revolution — taxation by representation — becomes subject to elitist whim.

The question of how much a state decides to spend on any public institution — even one so essential as schools — is a political question, and so belongs to the political branches. The courts have no business in it, and should be ignored if they pretend otherwise.

GLENN REYNOLDS CHIMES IN:

FDR could get away with this because he was much more popular than the Supreme Court. No politician or official today is more popular than the Supreme Court. I doubt a President Gingrich will be either.

Probably, but I don’t think Gingrich is as far out of the mainstream as he sounds. I think the popularity of the Supreme Court, especially on the right, is grossly overstated. Decisions like Kelo demonstrate that the Court is not to be trusted to protect individual liberties over the power of the state. It’s less scandal-ridden than the political branches, but that’s hardly a high bar to clear. Only the Left still holds the court in high regard, and then only when they win.

A Constitution That Can Be Escaped is Not a Constituion at All.

Jeff Goldstein hits Mitt Romney on an oft-ignored weakness: judicial moderation.

Statism is in the very strictest sense anti-Constitutional. Or, if you wish to be kind, extra-Constitutional, which really amounts to the same thing.

The first step toward fixing a politicized judiciary is NOT to bracket political leanings when choosing justices. And that’s because such a conceit plays into the hands of the left, whose adepts and acolytes are happy to promote an equivalency between statist and conservative legal reasoning — with the former, when deployed “equally” on the courts, providing steady pressure against the Constitution itself, leaving the latter little margin for error should we hope to keep the courts from expanding the power of government.

There is a reason, after all, that our country has moved steadily left, and why the left will use the courts to move the country leftward whenever they can.

No, the first step toward fixing a politicized judiciary is to reaffirm the scope and function of the courts, and to state without equivocation the appropriate methodology for what comes to count as “intepretation” in a legal context.

Just so. Interpretation is not the same as re-interpretation. The former is fact-based and objective, even blind. The latter is agenda-based and deeply committed to the right answer.

A GOP candidate who does not understand this is not acceptable.