The CourtZero book, Chapter Eight

The last chapter can be found here. The link to previous chapters is at the beginning of that post.

Slow blogging, isn't it? That means it's time for another chapter in the serialization of the CourtZero book, so I give you chapter eight, "Why We Should Care about Judicial Activism"

For the audio version of this chapter, click here. (I apologize for the substandard quality of the audio for this chapter. It is not as well produced as the audio for the other chapters because of an oversight when I originally went into the studio to record the book.)

Chapter Eight

So why should I care about judicial activism, anyway?

Do you vote? It’s not polite to generalize, but if you are reading this book, you probably vote, at least in presidential elections. As this book is being written, we are just about to either re-elect the current president, or elect a new person for the job of chief executive. There is a lot of interest in this election; passions are high. People really, really care about the outcome. So will your vote matter? Let’s talk about that.

When presidents are sworn in, they take the oath that is required of them by Article II, Section One of the Constitution. It says:

“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Our first president, George Washington, added the words “so help me, God” to the oath, and that has become traditional.

So your vote, about which you were so passionate, and about which you worried and hoped your candidate will win, gets you a leader who has sworn only one specific thing: to preserve and protect the Constitution. If the Constitution, however, is living and breathing, changing and morphing, than what has the president sworn to do on your behalf? Nothing! The president has only sworn to preserve and protect fundamental principles that could change entirely tomorrow, and again the day after that. The president would love to uphold the oath, but it is impossible, because it is judges who change the law, and the president is powerless to do anything about it, in modern reality. If the president’s oath is therefore meaningless under a Constitution that evolves without public input, your vote is, likewise, meaningless. Sorry about that.

The same analysis applies to your other elected representatives, your members of the House of Representatives and the US Senate. With a solid constitution, you could hold them to account, and you would have a simple standard by which to judge their performance on your behalf. With a living, breathing constitution watched over and shaped almost exclusively by judges, your legislatures are powerless to do anything to protect your rights and our fundamental principles, making your vote meaningless with regard to them as well.

What about soldiers? Men and women commissioned as officers in the United States military also take an oath to preserve and defend the Constitution. Some become generals, but most are lieutenants and captains; they are people from your town and people you know. So upon what have they staked their honor? What have they sworn to do?

They have agreed to risk their lives, to risk dying, becoming a prisoner of war, and even more worse, risking the possibility that they may need to kill enemies, all to preserve and defend the Constitution of the United States of America. If the Constitution is a living, breathing document, then they are left with the idea that they may die in defense of nothing in particular, as it may change dramatically the next time a judge decides to make that document evolve. That’s not an acceptable system. It is not in keeping with our shared principles of trust and honor.

Oh come now, you say, military officers know how things work, and aren’t really doing what they do to defend the Constitution. Smile when you say that to me. If men and women stake their lives knowing that they will be remembered for protecting something enduring, they will go to their tasks with a sense of duty and honor. If they have no solid and predictable fundamental principles to defend, they are reduced to people who get paid to preserve the peace or go to war under a meaningless oath and simply because someone happens to be powerful enough to issue the order. Which picture is more attractive to you, and to those who are thinking of enlisting?

What about the rest of us? Maybe we have never taken any oaths about the Constitution. Why should we care what judges do to our fundamental principles? The answer is because they get it wrong, a lot. Because they, the judges, aren’t smarter than you are, and because we need not cede them so much power over our lives unless we choose to do so, and, not least of all, because we expect our votes to mean something. If judges can change even the fundamentals at will, without public input, then we do not truly live under a representative government. We are beginning to live, instead, at the pleasure of an oligarchy. You can accept that arrangement if you wish, but you accept it at your own peril.

“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy”. --Thomas Jefferson, 1820