by "This is a republic, not a democracy. Let's keep it that way!"
When I was a teenager, that was a popular saying in conservative circles. Conservative circles in 1958 were very few and very far between. The movement lacked slogans. Every fringe movement needs a few slogans. Slogans are like secret handshakes in a club. They identify one's true colors to those in the know.
That slogan was misleading then, and it is misleading today.
America is an oligarchy of lawyers and the businessmen who hire them.
In no other nation do five lawyers determine what is lawful and what is not. This supreme authority of five people is both a symbol and the legal foundation of the political system that rules 310 million Americans. Yet we are so used to it that we give it no thought. We assume that this is normative: "the way things are 'sposed to be." Yet it is neither normative nor Constitutional. It is merely traditional.
On July 9, 1986, CBS television ran a show titled The Burger Years. It was an interview with the Chief Justice of the Supreme Court, Warren Burger. It was the most important interview ever granted by a sitting Chief Justice. It was conducted by the former public relations spokesman for Lyndon Johnson, Bill Moyers, who by 1986 had become a respected media figure, a Voice of Disinterested Authority – the only Establishment survivor of the sinking of the U.S.S. Lyndon. In that interview, this exchange occurred.
CHIEF JUSTICE BURGER: Constitutional cases – constitutional jurisprudence is open to the Court to change its position in view of changing conditions. And it has done so.
MOYERS: And what does it take for the Court to reverse itself?
CHIEF JUSTICE BURGER: Five votes.
This may sound cynical. It was not cynical. It was a forthright statement of judicial principle. Five people decide the meaning and applicability of the foundational document of American civil government. At any time, one of these five can change his or her mind, or be replaced on the court by someone who does not share this view. Then the Constitution is reinterpreted, and whatever was lawful before becomes unlawful, or vice versa.
When the court is divided 5 to 4, one vote decides what is lawful: the swing vote.
This is called republican government if you are a conservative Republican, and democratic government if you are a liberal Democrat. Every movement needs a few defining slogans. The more widely they are believed, the less accurate they are.
The House passed a bill repealing Obamacare, as expected. The Senate voted it down, 51 to 47, as expected.
Each side is jockeying for position in preparation for the elections of 2012. They know that. The press knows that.
Senator Mikulski of Maryland spoke for the extreme Left of the Democrats in the Senate, as she has for a quarter century. She was elected to the Senate in 1986, two months after Burger retired and four months after he gave his interview. Here is her assessment of the Republicans' strategy. She identified it as "one more hollow, symbolic, pander-to-the-masses amendment."
Who are the masses? Voters. Lots and lots of voters. For the moment, that is a threat to the Democrats in the Senate. They have less than two years to change the minds of the masses.
Yet all this may turn out to be a sideshow. The real rulers of America have begun to choose sides. Two Federal judges have said the law is unconstitutional. Two have said that it is constitutional.
The Florida challenge to the law was brought by 26 states. The government's attorneys argued that states do not have legal standing to bring the case before a Federal court. It was a weak defense.
Congress is divided: House vs. Senate. States are divided: 26 to (presumably) 24. The Federal district courts are divided: 2 to 2.
So, we are headed for a showdown in the halls of the United States Supreme Court. A 5 to 4 decision is a real possibility. If the Court rules that the section of the law that has been declared unconstitutional by the judge in Florida – the section on the mandatory purchase of health insurance – then the whole law is gutted. It loses its teeth. At that point, it's dead for two years. Then the outcome will be decided by Congress in 2013, when Republicans may have the Senate and the Presidency.
In a 5 to 4 decision, it's one man, one vote: the deciding vote.
If it is declared constitutional, and Ms. Kagan votes in favor, then a lawyer who served as an Obama administration lawyer is the swing vote. If she recuses herself, as the Wall Street Journal says she should, then a 4 to 4 decision will create havoc. In two Federal districts, parts of the law cannot be enforced. There may be more district courts invalidating the section on mandatory purchase, if more cases are introduced, which looks certain.
The United States Constitution is a short document. Its language can be understood by a careful reader. Its grammar is heavy on capital letters, but who cares?
In Article III, Section 2, on the powers of the Federal judiciary, we read this:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Supreme Court has original jurisdiction in only three areas, two of which are arcane. In all other areas, its jurisdiction is delegated by Congress.
Does this mean that Congress – without the consent of the President – can remove the Court's jurisdiction? Yes. Are there any limits on this? Yes. "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." Any others? No.
The Supreme Court has original jurisdiction in the Obamacare case in the Florida District Court. States brought suit. Congress cannot touch that authority. But such cases are rare.
Then why doesn't Congress get its way when the Court overturns a law? Because of tradition. In the Republican Party-dominated period of Reconstruction, Congress did remove the Court's jurisdiction over a case involving the military rule over the South. The case was Ex parte McCardle (1869). Wikipedia's account is accurate.
During the Civil War Reconstruction, William McCardle, a newspaper publisher and professional soldier in the Confederate Army reaching the rank of sergeant, published some "incendiary" articles which advocated opposition to the Reconstruction laws enacted by the Republican Congress. He was jailed by a military commander under the Military Reconstruction Act of 1867, a law passed by the United States Congress. Mr. McCardle invoked habeas corpus in the Circuit Court of the Southern District of Mississippi. The judge sent him back into custody, finding the military actions legal under Congress's law. He appealed to the Supreme Court under the Habeas Corpus Act of 1867, which granted appellate jurisdiction to the Supreme Court to review denial of habeas petitions. After the case was argued but before an opinion was delivered, Congress suspended the Supreme Court's jurisdiction over the case, exercising the powers granted to Congress under Article III, section 2 of the Constitution.
If ever there has been a Constitutional case that has not made it into the American history textbooks, it is this one. This case makes it clear that Congress is in charge. If Congress wants to keep the Court's nose out of Congressional business, it can tell the Court to fly the proverbial kite.
Yet Congress refuses to do this. Congress passes laws that are clearly unconstitutional. Members justify this by means of this excuse: "If it's unconstitutional, the Supreme Court can say so." Congress has delegated to the Court original jurisdiction over everything: county laws, state laws, and Federal laws. Only in the case of treaties, over which the House has no jurisdiction, does the Court keep its hands off laws.
How did this come about? How was the judicial sovereignty of Congress removed completely by the Supreme Court? Because of the lawyers' guild. The law schools teach the doctrine of judicial sovereignty. This has mandated the teaching of the Court's original jurisdiction as unbounded. This extends to nine unelected representatives of the legal guild the power to overrule the masses, meaning a majority of the voters.
The Constitution says that the Congress has original jurisdiction. The lawyers say otherwise. The textbooks do not raise the issue. This includes textbooks in Constitutional law.
The Supreme Court has arrogated to itself the right to interpret the Constitution. For about a century, the Supreme Court has operationally ignored the Constitution's clear teaching regarding original jurisdiction. The Constitution has been allowed to die, section by section, according to "changing conditions," to quote Chief Justice Burger. The Court cuts off life support to those sections that interfere with the opinion of five members at any given time.
The Constitution is called a "living document," meaning an evolving document, meaning a document that five people on the Supreme Court get to make up as they go along, which they do. This living document is on life-support. It exists mainly for the convenience of the lawyers' guild. They know how to make it pay.
For as long as I can remember, the Republican faithful have told conservatives to vote for the Party's middle-of-the-roader Presidential candidate. Here is the fall-back argument: "He will get to appoint Supreme Court justices." This argument recognizes the intensely political nature of the Supreme Court. The Court interferes with everything, including politics. But it is not limited to politics. It is not limited at all, according to the Court.
The Court has claimed original jurisdiction over every area of American life. It has therefore declared sovereignty. Because there are no bounds to this sovereignty operationally, this is absolute sovereignty.
In England, this same claim is made by Parliament. The courts cannot override Parliament. Neither can the king. The result is pretty much what it has been in the United States: the extension of government power.
I am not saying that the Supreme Court has been at odds with the general opinions of voters most of the time. As the humorous literary character Mr. Dooley said over a century ago, "No matter whether the country follows the flag or not, the Supreme Court follows the election returns." But the arrangement by which the voters exercise a final say over the government is not the textbook version. The voters extend their control through the lawyers' guild, which filters it – spins it, basically.
There was a reason why Puritan Massachusetts made it illegal to collect a fee for representing someone else in court. In a classic paragraph by Daniel Wait Howe's The Puritan Republic in New England (1899), we read:
That the profession had become almost extinct during the commonwealth period appears from a letter written by Edward Randolph to Mr. Povey in 1687, wherein he says: "I have wrote you of the want we have of two or three honest attorneys (if any such thing in nature). We have but two, one is West's creature, come with him from New York, and drives all before him. He also takes extravagant fees, and for want of more, the country cannot avoid coming to him, so that we had better be quite without them than not to have more."
In 1663, the legislature, called (then as now) the General Court, made it illegal for a lawyer serving in an inferior court to serve in the General Court. In 1673, it became legal to represent others for a fee, but fees were regulated by the government. There were no lawyers who earned a full-time living. Yet by 1700, merchants and lawyers had replaced ministers as the leaders of Massachusetts politics. The lawyers triumphed ever after. Why? Because Americans are a litigious people.
It was not just Massachusetts. Virginia expelled all lawyers from the colony in 1658.
Decade by decade, generation by generation, lawyers have become the interpreters of the American way of life. Voters cannot conceive of a legal system not dominated by lawyers. The goal of every self-conscious group is to control the law schools. Harvard Law School, Yale Law School, and a handful of others have provided the political leadership of the country for well over a century. They set the limits of political discourse.
I have waited ever since 1962 for a conservative or a libertarian to write a textbook on the history of American Constitutional law. It has not appeared. Similarly, I have waited since 1958 for a detailed, documented study of Roosevelt's revolutionary New Deal and his wartime policies, which covers both domestic policy and foreign affairs. Until these two books appear, the conservative movement will remain a fringe movement.
Roosevelt had only one major political defeat as President, when he attempted to "pack" the Supreme Court in 1938. The very word "pack" indicates that he lost. Congress rebelled. The great irony was this: Roosevelt clearly had Constitutional grounds for doing this. There is no set number of justices. But he transgressed the legal guild's tradition, and he was thwarted. That tradition, not the Constitution, is sovereign.
The Court after 1938 started handing down decisions in favor of Roosevelt's New Deal, especially after his election to a third term in 1940. The Supreme Court follows the election returns.
There are conservative voters who still believe that taking control of Congress and the Presidency will lead to a transformation of the nation. This places far too much trust in national politics.
The political system is rigged by lawyers. It always has been. Until the major law schools adopt the principles of limited civil government and the strict construction of the Constitution – itself a lawyers' document that was illegally passed, according to the original Constitution (the Articles of Confederation) – the conservative movement will remain on the sidelines.
Because Congress will not exercise its Constitutional authority, we should not expect deliverance by Congress. Congress is not in charge. The Constitution is sovereign in name only.
The Constitution begins with a declaration of sovereignty, point one of the covenant model: "We the People of the United States . . . do ordain and establish this Constitution for the United States of America." This Preamble could not be clearer. The Framers presented the document for ratification in such a form that the entire population acting corporately through the states would gain formal credit for the document.
What is the meaning of "we the people"? I asked that question of Warren Burger. He had written that these are the document's most important words. On September 26, 1988, he wrote his reply. It was a six-word reply: "They are the key words conceptually." He underlined conceptually.
Legally, the words mean nothing. For propaganda purposes, they mean that the rubes will sit there and accept what five people tell them they may or may not legally do.
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