GETTING IT WRONG ABOUT “GETTING IT RIGHT”
The Remarkable Lavish Praise by Justices Thomas and Scalia of Radical Liberal Judicial Activists”
by
Lester Jackson, Ph.D.
On television, Justices Thomas and Scalia lavishly praise extremist liberal activists. For those who eviscerate the Constitution, such praise is unjustified on the merits as well as contradicted by the scathing writings of Thomas and Scalia themselves.
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Your analyses, Dr. Jackson, are superb. You join an esteemed company of thinkers who have long courageously fought abuses of language and power.
While I have not read all of your reflections, I wonder whether you have pondered the soundness of advocating not only limiting terms to the Executive and/or legislative to two terms, no matter what combination or in whichever branch or chamber, but also limiting membership in any judicial appointment to the length of two presidential terms as well.
Our founders, assuredly, could not have foreseen the great increase in longevity we now enjoy.
Also, if term limits were imposed to all offices by a Constitutional amendment, there could be a further stipulation that anyone who shall hold office in any executive, legislative, or judicial position must pass a public scrutiny on her or his knowledge and comprehension of the Constitution and its implications.
Flagrant judicial abuse of power has prompted numerous proposed remedies repeated over the years (e.g., require a Supreme Court supermajority, such as 7-2, for any unconstitutionality ruling, which could then be overturned by a 2/3 majority of each house of Congress as is now done with presidential vetoes, strip federal courts of jurisdiction as explicitly provided for in the Constitution, etc.).
In my view, ending lifetime appointments would be best. Lawlessly and arrogantly usurping power, federal judges long ago forfeited any legitimate claim to life tenure. Their lack of integrity has conclusively vitiated the very basis used by the Founding Fathers to justify life tenure in the first place.
However, it is easy to propose remedies. For three reasons, they cannot now be adopted . First, as noted in Getting It Wrong, the Supreme Court is the last best hope of democracy’s losers. They are not going to give that up without a fight. Unpopular and harmful, even dangerous, radical extremist policies that cannot be adopted democratically are repeatedly rammed through by federal judges – usually by stealth and unnoticed like noiseless and invisible thieves and worms, to paraphrase Thomas Jefferson . Yes, there are widely reported fiats such as on abortion and, recently, gay marriage. But these are the exception; in any event, most “journalists” focus on whether they like the results rather than on whether such results follow the Constitution or are an abuse of judicial power.
Far more typical has been the gradual and, by now, almost total neutering of the death penalty.
Second, although often unable to impose unpopular policies legitimately, democracy’s losers are strong enough to preserve judicial subversion of representative government. The Constitution, requiring extraordinary majorities, makes it far easier to block than to adopt amendments (except, of course, when the Supreme Court itself easily usurps amending requirements with reckless abandon).
Third, although some polls indicate a decline in public approval, the Supreme Court still has considerable protection for one simple reason: THE MEDIA. The media conceals from the public what the Court really does. The unreported outrages are without limit.
I am convinced that the public would not stand for rampant judicial abuse if the public knew about and understood it. I do not write for experts. My goal has been to inform the lay public. Thus I strive to write in a way that can be easily understood. I avoid jargon and legalese. Unfortunately, with very little support from those on our side who are in the best position to publicize my work, I have achieved little.
The unpleasant truth is this. Reform is now impossible. Unless overwhelming public support can be generated, it will only be an academic exercise in futility to muse about specific proposals.
I will have much more to say about this in what likely will be my final article.
I’m persuaded that the Supreme Court’s judicial arrogance seriously imperils the public welfare and some thirty years ago, I conceived what I consider a practical remedy. In particular, I proposed an amendment to the U. S. Constitution consisting of the following simple, morally unchallengeable, and impossible-to-misconstrue, thirty-eight word sentence:
“The several words and phrases in this constitution shall be construed to mean what that language was generally understood to mean in the United States during the period in which the enabling ratification of that language took place.”
I share with the majority of my fellow citizens a reverence for our constitution and a strong distaste for frivolous change. And if ever a constitutional phrasing seemed superfluous, surely this one does, for all it provides is that solemn agreements reached by the people of the nation shall be treated by the nation’s government as binding commitments. I call my proposition the SANCTITY-OF-CONTRACTS amendment.
Yet in the present context, the proposed article is indeed a radical one for it would sharply redirect the Court from its current practice of routinely substituting its own wisdom for that reflected in the compacts our people have formally established among themselves.
Yes, my proposed amendment would be a radical change; but in order to protect our charter from frivolous change, it is a necessary one. And even if this commitment to intellectual honesty should be too radical to hurdle the legislative barriers, public discussion of its substance among the legislatures and among the people would be both instructive and constructive.
When, back in 1983, I addressed this proposition to my congressman, the late Stewart McKinney (RINO-CT-Frfld Cty), I worried that formalizing such an obvious principle would be considered frivolous. But in his carefully considered response, Mr. McKinney vindicated the need for my amendment by declaring that the “Constitution is a remarkably resilient document”, the reason for its durability being that “it is a `living’ document” that “can adjust to the times without diminishing the legitimacy and force of its fundamental principals.”
Further, Mr. McKinney opined that “a sanctity of contracts amendment would probably do more harm than good by preventing the Constitution to change with the times.”
Mr. McKinney’s reaction made my case!