The Most Dangerous Branch

John Armor performs a crucial service with his three recent blog entries about liberals’ use of the courts to counteract democratic self-rule (see John’s article today about the Supreme Court opinion in Smith v. Texas, and his two articles about the “ACLU Against Wisconsin”). Ostensibly, the articles have different subjects: The article about the Texas case discusses adjudicating capital punishment, and the articles about Wisconsin discuss efforts by allies of the losing candidate (and of the ACLU) effectively to reverse the outcome of a judicial election. In fact, the articles bring great insight to the same pernicious development, i.e., the role of liberals in building and then using an increasingly politicized judiciary to achieve policy outcomes they can’t sell at the ballot box.

It is of course true that courts are empowered to strike down measures enacted by the electorate, or the elected branches, when they violate the Constitution. But fidelity to the principle of majority rule — which is, after all, the cardinal principle of democracy — requires courts to act with great restraint in the exercise of that power. One thing restraint means is that judges cannot simply declare that the Constitution ordains their own preferences. To allow such a thing is to replace the rule of law with the rule of taste. It is also to invite into the law one of the principal sources of its destruction: instability. When people don’t know from one term of Court to the next what the law requires or forbids, then law has lost one of its most valuable qualities. More importantly, it has lost one of the primary qualities that defines it as “law” to begin with.

The imperative of judicial restraint is the cornerstone of the argument for originalism — that is, the argument that the Constitution must be interpreted in accord with its original meaning as the Framers understood it. Often this is portrayed by ACLU-types as mere nostalgia for an irrelevant, 18th Century past. In order to accommodate change, they argue, the Constitution must be seen as “living” or “flexible.” But the Constitution was never intended to accommodate change in the ACLU-approved sense. It created the Executive and Legislative branches to do that. And there is a crucial reason for this distinction: When the policy du jour is adopted by the political branches, it can get “un-adopted” at the next election. But when it is adopted as part of the Constitution — something only the courts can declare — the next election will do you no good. Legislative edicts can be here today and gone tomorrow, but Constitutional edicts are, for almost all practical purposes, here to stay.

Because courts have (at least some of the time) acted with the restraint their awesome power commands, they have been called “the least dangerous branch.” But as the Texas death penalty case illustrates, we are never very far away from their becoming a very dangerous branch indeed. In my next blog, I will use that case, and the capital punishment debate generally, to try to explain why this is so.