A Plan to Renew the Promise of American Life, Plank 3
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Plank 3. End judicial usurpation
Specific Recommendations
3.1. Appoint to the bench only principled originalists with an ample paper trail. No stealth candidates.
3.2. Give principled originalists a majority on every federal court, including the Supreme Court, preferably through appointment but if necessary by altering the number of seats.
3.3. To diminish the reach of rogue appellate courts, increase the number of federal circuits.
3.4. To rein in rogue judges, judiciously alter the jurisdiction and powers of the federal judiciary, for example, by stripping lower courts of jurisdiction in sensitive areas and eliminating ‘national’ injunctions.
3.5. To limit the damage caused by erroneous judicial rulings, and to give courts more opportunities to reverse them, minimize the use of stare decisis and aggressively employ such traditional tools of equitable interpretation as narrow construction, avoiding, distinguishing, overruling, and reversing.
3.6. Avoid the trap of ‘judicial restraint.’ Always put the Constitution first. In judging avoid a blind deference to legislative majorities.
3.7. If the foregoing reforms prove insufficient to end the judicial usurpation of democracy, amend the Constitution, as a reluctant last resort, to improve the judges’ incentives. Specifically, provide that henceforth justices of the Supreme Court will be appointed not by the president but by the states, with each state filling one seat and no justice serving more than, say, twelve years. Have the governor nominate and the state senate confirm or reject as happens at the federal level now.
Comments
Jefferson once warned that the Supreme Court, if not carefully watched and controlled, could impose on the republic ‘the despotism of an oligarchy.’ Today we live under that despotism.
The judicial usurpation of democracy — the assumption by judges of powers beyond their authority — is now a deeply entrenched and, alas, widely accepted feature of our system. Our servants, the judges, have become our masters.
The federal judiciary has exceeded its powers, to the detriment of our natural rights and civil liberties. Almost every provision of our Constitution has been destabilized, and almost every public institution has been deformed or corrupted.
We have reached a moment when a serious program of reforming the judiciary is no longer avoidable. To save the country, we must restore the judiciary to its proper constitutional role. This plank — in some ways the most important — is intended to help us carry out that essential reform in a peaceful and prudent way.
The reform strategy I’m proposing has a number of facets, but it can be summarized as follows. Populate every court with principled originalists, and curb those courts’ powers where experience has shown those powers are too great or too prone to abuse. And if all else fails, restructure the Supreme Court to reduce the justices’ temptations.
The Job of a Judge
The job of a judge in the United States is not just to apply the law in individual cases and controversies but also to guard the constitutional limits on government power and thus to protect the life, liberty, and property of every citizen from unjust invasions by the government. The judge’s job is to defend the text of the Constitution in light of the natural-right principles of the American founding.
To be able to carry out this essential job, the judge must be independent. He must have the freedom to check the other actors in our system — Congress, the President, the States — without fear of reprisal. That is why the Founders decided that federal judges should serve ‘during good behavior,’ that is, for life. Because federal judges must be both independent and free to wield truly awesome power, extra care must be taken in their selection.
What’s a Principled Originalist?
By the term ‘principled originalist,’ I mean a jurist who steadfastly honors, explains, defends, and vindicates the original public meaning of the constitutional text as it was understood by those who ratified it, in the context of its structure and purpose and in light of the natural justice principles of the American republic and without regard to the judge’s personal policy preferences.
A principled originalist treats the Constitution as a legal document, a document to be construed and enforced according to the canons of legal textual interpretation, and not as a magic carpet to be ridden to some new heaven of the heart’s desiring. A principled originalist does not create new ‘fundamental’ rights out of whole cloth. He respects and protects the four basic principles of the Constitution: republicanism, federalism, and the separation and enumeration of powers.
The principled originalist interprets the Constitution in light of its actual text, according to what a reasonable, competent speaker of English living at the time of its adoption would have declared its ordinary public meaning to be. Discerning this meaning requires looking not only at what the words meant at the time they were ratified but also to the methods of interpretation that courts would have used at that time. It can also require a consideration of the authors’ and ratifiers’ intentions, but only when the text itself does not suffice. The principled originalist strives to find the original meaning of every word in the light of every other, in the context of the instrument’s structure and purpose. But he does not wear blinders. He is a textualist but also a guardian. He rejects the notion of a ‘living’ constitution whose meaning changes. A written constitution cannot be ‘alive.’ We want it good and dead.
When the plain meaning of the text seems to conflict with the ratifiers’ apparent intention, the principled originalist will err on the side of the principles that the Constitution was created to enshrine. If he finds the Constitution itself wanting in some particular, he will let the people formally amend it. He will not do so himself.
For an introduction to the principles the U.S. Constitution exists to protect, I recommend two thinkers, Professor Hadley Arkes and Judge Diarmuid O’Scannlain.
While the principled originalist will never usurp legislative powers, he will not hesitate to nullify the enactments of democratic majorities or the actions of executive officers when they attempt to violate the first principles of the system or invade the natural rights of citizens. He will, as far as the Constitution allows, protect the natural and civil rights of individuals against oppression by local majorities, and he will also protect the natural and constitutional rights of local majorities to govern themselves against oppression by the state or federal government. When a statute and the Constitution conflict, he will err on the side of the Constitution. When an erroneous or too-literal reading of the Constitution conflicts with natural justice, he will not hesitate to insist on the correct reading of the Constitution even if it means overturning a precedent.
An example. A legislative majority might pass a latter-day Nuremberg law persecuting Jews, and pass it according to all the proper forms, but it would still violate the Constitution because such a law by its very nature violates the principles that the Constitution was established to protect. The Constitution is silent on Nuremberg laws, but it is most assuredly not neutral on them. A principled originalist will not hesitate to strike them down.
The best living example of a principled originalist, in my view, is Justice Clarence Thomas. Let us have more like him.
The Tempting of the American Judiciary
Why has the American judiciary become despotic? I would say the temptation has been there from the beginning. It is inherent in the separation of powers. The U.S. Constitution is unusual in making the federal judiciary a coequal branch of government alongside the executive and legislative, and in giving federal judges the awesome power to strike down any law in the land on constitutional grounds.
In a certain respect, the power of the U.S. Supreme Court is more extensive than is the power of Congress or of the president. The president cannot issue an order to a governor. Congress cannot issue an order to a state legislature. But the Supreme Court can, in effect, issue an order to all the state judiciaries. And because, as a chronological matter, the Supreme Court has the last word in ‘saying what the law is,’ it is, as a practical matter, ‘infallible because it is final.’
This arrangement can be tolerable, even desirable, so long as judges, in addition to being principled originalists, are upright men and women of impeccable moral character and do their job conscientiously and well. But it is an arrangement fraught with risk.
In a more traditional system, judges pose less of a danger, because the powers of government are intermingled. The judicial power is subordinate to the executive and legislative. In our system, when the federal judiciary errs on an important constitutional question, it is well positioned to defend itself against pushback from any of the three other principal power centers: Congress, the President, and the States. A constitutional error by any one of these can usually be corrected by the exercise of some ordinary power, legislative, executive, or judicial. But a constitutional error made by the U.S. Supreme Court can, as a general matter, only be corrected by formally amending the U.S. Constitution, a far more difficult task.
The Court’s strong position is reinforced by the justices’ life tenure. Judicial independence is a necessary tool for protecting our natural rights and civil liberties. Federal judges are hard to fire precisely so they can serve, not transient popular majorities, but the permanent majority as expressed in the constitutional text. This makes it all the more vital to choose them well.
Happily, there are remedies short of having to pass a formal amendment every time the Court misreads the Constitution.
The first line of defense against a judicial error is to simply ignore it — to pass a law in defiance of the Court. Sometimes the Court will voluntarily back down in the face of resistance. In 1862, in defiance of Dred Scott, President Lincoln signed a law outlawing slavery in the territories and authorized the issuance of U.S. passports to black citizens. The Supreme Court never ruled against these actions.
But what if the Court is stubborn? Well, for starters, we can change who sits on the bench, as they retire or die, or alter their number by statute or attrition. Those remedies should ordinarily be sufficient. Congress has changed the number of justices five times since 1789. Some decry this as ‘court packing,’ but what is wrong with changing the number of justices? The power is right there in black and white. By the way, those who defend the idea that ours is a ‘living’ constitution can have no principled objection to ‘court packing’ or ‘stacking.’
If the foregoing strategies fail, there would seem to be one resort left, and that is to formally amend the Constitution. But what kind of amendment or amendments? Should we focus on issues or structure? The latter is preferable, I think.
Amending the Constitution is hard, and rightly so. It’s a remedy that can’t be resorted to, too often. And, even when successful, an amendment can be thwarted by a really stubborn and crafty court majority. And unless it is thoughtfully framed and carefully worded, an amendment can produce unintended consequences. Realistically, we cannot possibly fix every judicial error with a separate amendment. There are just too many.
Rather, we should restructure the judiciary to change the justices’ incentives, to induce them to voluntarily reverse past errors and prevent them from relapsing, but without diminishing their independence. As far as I can see, the best and simplest way to do this is to change who appoints the justices and how long they serve.
I concede that I might be missing something, and that the course I’m suggesting here is radical, in the sense of going to the root, and that is why it should be a last resort. It would be better to avoid that resort. But if nothing else works, should we hesitate to repair and reform? The alternative is to remain subject to the despotism of an oligarchy.
What Is the Problem?
What is the problem we’re trying to solve, exactly? I can think of five problems.
- Enumeration of Powers and Federalism. The Court has ceased to enforce the Constitution’s limits on federal power, thanks to a latitudinarian reading of numerous provisions. The judges now consistently misread a number of important clauses, including those regarding Congress’s powers to tax and spend and to regulate interstate commerce, and made arbitrary use of the General Welfare Clause and the Necessary and Proper Clause, to the benefit of the federal government at the expense of the states and to the benefit of special interests at the expense of private individuals and local communities. And they consistently read the Ninth and Tenth Amendments out of the document altogether — amendments intended to prevent latitudinarian readings of federal powers.
- Separation of Powers. The judges have ceased to enforce the separation of powers, a key safeguard for liberty. They have done this through an excessive deference to federal administrative agencies, which wield legislative powers — including not just powers usurped by them but powers unconstitutionally delegated to them.
- Judicial Legislation. The justices themselves have usurped legislative powers, by creating new ‘fundamental’ rights out of whole cloth, rights no one may prohibit or even reasonably regulate, without their permission. They have done this primarily by inventing an unhistorical meaning for the term ‘due process of law’ in the Fifth and Fourteenth Amendments. The effect of this change has been to radically transform American law so as to deeply divide citizens, with no hope of reasonable compromise, and thus to stoke the fires of cultural conflict and create a dynamic that tends toward a sort of cascading despotism. Nothing has embittered our politics like judge-invented ‘fundamental’ rights. Of all the various government usurpations, this is surely the worst.
- Enumerated Rights. The judges have made an ungainly patchwork of the rights of national citizenship through an overly narrow reading of the term ‘privileges or immunities of citizens of the United States’ in the first section of the Fourteenth Amendment, and through an awkward approach to protecting some but not all of those rights through a strained construction of the aforementioned due process clause of the same section.
- Unenumerated Rights. The judges have neglected the retained, unenumerated natural rights of individuals. While our various state and federal constitutions do not grant judges the power to safeguard all such rights, which are seemingly infinite in number, our courts should err on the side of protecting such rights in the absence of sufficiently explicit positive law to the contrary.
The cumulative effect of all these errors has been a consolidation and concentration of power in the hands of unelected elites. Power has moved from the states to the general government, and from Congress to the executive and to the courts.
The states have become little better than dependencies — dependent on federal grace and largess, and to such an extent that they only occasionally act as independent sources of authority with their own duties and powers. They are gradually morphing into mere provinces or administrative districts, as if America were a single consolidated state.
These deformations have gone on for so long that I really do not think the ordinary processes of election, representation, and legislation can be counted on to check them. I wish it were not so. The centralization of government power has become a one-way ratchet. We need ways to reverse it.
In weakening the basic principles of the system — federalism and the separation and enumeration of powers — the judges have undermined the republican character of our institutions, moving us dangerously in the direction of oligarchy.
To solve these problems, we have little choice but to recommit ourselves to the first principles of American liberty.
Possible Remedies
The judiciary is unlikely to reverse its errors voluntarily. Like every human institution, it is loath to admit mistakes and reluctant to relinquish power. But I think we can change its behavior with a prudent application of pressure.
Here are some possible options for ending judicial usurpation, with a brief thought or two on each.
a. Better judge-picking. Ample paper trails, no more stealth candidates — this should go without saying. But there is a challenge. We cannot always detect erroneous thinking at the time of confirmation, even in an ample record. Nor can we always predict how a judge will actually behave once confirmed. Sometimes a good judge turns out not to be so good, or goes bad. And even a good judge makes an occasional mistake, sometimes a big one. So it would seem appointing better judges is necessary but not sufficient. /1
b. Impeachment. Historical experience suggests impeachment only works for policing ordinary crimes and malfeasance. For deterring erroneous judicial reasoning, it has been a flop. Jefferson dismissed it as a ‘scarecrow,’ meaning the kind that crows like to rest on. I think we have to scratch it from our list.
c. State nullification. State nullification or principled resistance of unconstitutional federal laws — the cherished ‘rightful remedy’ of John C. Calhoun and the Confederates — is problematic, of course. It may have a certain place in theory (after all, state officers swear to uphold the federal constitution, too), but thanks to its historical misuse it will probably always carry a whiff of racism. And it only seems to work where the other branches have already signaled a willingness to reconsider an erroneous policy (for example, on cannabis regulation, where states have simply disregarded the federal controlled substances act). It clearly does not work when it comes with a threat of violence, as in the Tariff Crisis. So I think we have to scratch this one off our list as well. Note: I am speaking here only about nullification by state governments. I can’t see a reason to object to nullification by individuals or juries.
d. Policy-specific constitutional amendments. There are too many errors to correct, and courts can simply ignore or misconstrue amendments they disagree with.
e. Procedural and structural legislative reforms. Now we come to an option that seems promising. It’s harder for courts to ignore or misconstrue procedural and structural reforms. And not all procedural and structural reforms require a constitutional amendment. Here are some legislative reform ideas I’ve heard mentioned, in no particular order: a) change the number of justices or circuits; b) redraw circuit boundaries; c) redefine lower courts’ jurisdiction in order to take certain issues out of their hands (‘court stripping’); d) alter Senate rules to make (good) judicial nominees easier to confirm, for example, by eliminating senators’ ability to filibuster nominations and/or by curbing blue-slipping (which is the custom of permitting senators to block a vote on a nominee from their own home state); and/or d) alter Senate rules to make (bad) judicial nominations harder to confirm (how exactly, is not entirely clear). While any of these reforms might be tried, and perhaps should be, the best and simplest, I think, would be to change the number of justices to give principled originalists a majority, and leave it at that. But should the Court be expanded or shrunk? Good question. Shrinking it is easier. Doing so merely requires inaction by Congress and specifically inaction by the Senate. Expanding the Court requires legislation signed by the president, and is controversial because of the stakes involved (as with FDR’s court-packing scheme). The Senate could simply leave two or three seats permanently unfilled, and then Congress could later codify the lower number of seats in statute. (Congress established the Court with six justices in 1789, and then altered the number repeatedly before 1869, since which time it has left the number at nine.) The exact number of justices is not as important as whether a majority upholds the Constitution. /2
f. A procedural and structural constitutional amendment. Examples of possible constitutional amendments include ones providing for: a) judicial term limits, b) judicial elections, c) judicial retention elections, d) appointment of U.S. Supreme Court justices by the states, and e) allowing the states or Congress to overturn U.S. Supreme Court rulings by a supermajority vote. None of these ideas is immediately attractive to me, and a constitutional amendment, as I’ve suggested, really should be regarded as a last resort. If we go down this road, the best approach, I would argue, is to change who chooses the justices, and, if necessary, to change their number and the length of their tenure. Here’s how I’d do it, if we end up having go this route. I would provide that henceforth justices of the U.S. Supreme Court are appointed by the states rather than by the President and Congress, with each state filling one seat and no justice serving more than, say, twelve years. (This idea is not original to me. I heard it proposed by Professor Michael Farris, who I assume came up with it.) The governor would nominate and the state senate would confirm or reject justices, just as occurs at the federal level now. How would this benefit the American people? First, because the justices would be appointed by the states, they would tend to look out for the rights and powers of the states, breathing new life into federalism. Second, the reformed Court’s large size and built-in, and seemingly irreducible, diversity would make razor-thin majorities less common and consensus-based rulings more common. It would be hard for the states to coordinate their appointments for some specific policy purpose, and thus harder for any one justice to become the all-powerful swing vote on important issues. Which in turn would, I think, make radical legal impositions less frequent. Third, the quality of judging should also improve because justices would know their hold on power is brief, thanks to the constitutional term limit. The average age of justices could rise, I suppose, but a smaller percentage of justices would serve past the point of senility, so, one hopes, the average level of wisdom and mental sharpness would also rise. Importantly, a greater rotation of justices would shorten the lifespan of erroneous rulings. If we had imposed a twelve-year term limit for justices beginning in 1981 and let the states fill the vacancies, it is possible the worst Supreme Court decisions would have been overturned by now, and fewer bad ones would have been issued. Some skeptics may object that this kind of restructuring would make the law too changeable and uncertain, but I think stability in the law depends more on the quality of a rule than its duration.
What About Civil Rights?
Some who oppose the remedies I’m recommending here may try to suggest they pose a threat to civil rights. Such critics would be wrong, and this is easy to prove. Originalism necessarily favors civil rights. By contrast, ‘living constitutionism’ renders such rights insecure because it’s essentially arbitrary. The Constitution, to quote Justice Harlan in his famous dissent in Plessy v. Ferguson (1896), ‘is color-blind and neither knows nor tolerates classes among citizens.’ The original Constitution tolerated slavery but never endorsed it. The words ‘slave’ and ‘slavery’ were avoided because the framers knew they were compromising with evil in order to secure liberty and justice in the long run. As Lincoln put it, they hoped they were placing slavery ‘in the course of ultimate extinction.’ After the Civil War, the Constitution does mention slavery but only to abolish it. It is easy to discern from the original meaning of section 1 of the Fourteenth Amendment, and the sometimes overlooked Thirteenth Amendment, that ours is a constitution that ‘neither knows nor tolerates classes among citizens’ and thus cannot tolerate official government segregation of the races, especially since the Constitution has been explicitly amended to prohibit slavery and all its badges and incidents, of which segregation is obviously one. Congress does not have an unlimited right to interfere in the domestic affairs of the states. But these constitutional amendments give it sufficient power to enact federal civil rights statutes that nullify state-sponsored class legislation, segregation, Jim Crow, ‘separate but equal’ public accommodations rules, and the like. In legal terms, the Supreme Court’s reasoning in Cruikshank (1876), the Civil Rights Cases (1883) and Plessy was wrong. It was right in Brown v. Board (1954) and in upholding the Civil Rights Act of 1964. (I quibble with the internal logic of Brown, which tries to work around Plessy rather than overturn it, but the result, which was unanimously reached, is undeniably correct.) To those who say the Fourteenth Amendment was not meant to end racial segregation in the public schools because the same people who wrote and ratified it tolerated such segregation, I reply: This is why we need equitable interpretation. The framers and ratifiers may have been hypocrites on the issue of segregated schooling, but the words they wrote are clear enough to enable — I would say to require — judges and lawmakers to outlaw it: ‘No state shall deny to any person within its jurisdiction the equal protection of the laws.’ And this, in a constitution that was created to enshrine the principle that ‘all men are created equal.’ There is no plausible justification for the government to segregate people based on their race, color, or ancestry. And nothing in this plank would change that. To the contrary, this plank would ensure that civil rights remain strong and secure — something living constitutionism can never do.
Notes
1/ Professors Randy Barnett and Josh Blackman have suggested six rules that should guide the selection, investigation, and confirmation of future judicial nominees: 1) Bruising confirmation battles are worth the political capital for a lifetime appointment. 2) Paper trails are an asset, not a disqualification. 3) Reject clichéd calls for ‘judicial restraint.’ 4) Focus on the Constitution, not issues du jour. 5) Focus on clauses, not cases. 6) Beware of candidates who take refuge in stare decisis (reflexive deference to past judicial precedents, no matter how erroneous).
2/ Update, April 6, 2017: The Senate’s three-fifths cloture rule, commonly known as the filibuster, may be on its way out, and that, in my humble opinion, is a good thing. The Senate has already changed its rules to eliminate senators’ ability to filibuster judicial nominations. It did so in two stages. First, in November 2013, with the Democrats in control of the Senate and the White House, the Senate eliminated the three-fifths cloture rule for all executive-branch nominations and all judicial nominations except for the Supreme Court. Then, in April 2017, with the Republicans in control or the Senate and White House, the Senate ended the three-fifths rule for Supreme Court nominations. So now, for nominations of any kind, a simple majority can end debate. This was good because partisan obstruction of executive nominations had become excessive and harmful to the public interest. But the three-fifths cloture rule remains in place with respect to legislation. I hope the Senate will take the next step and repeal it too. While it may have had its benefits in the pre-New Deal era, when the federal government was comparatively small and constitutionally limited, in the present era of unlimited government, it merely acts as a one-way ratchet for a never-ending growth of government and the ever-deepening embitterment of our politics. Now, admittedly, in the short run retiring the three-fifths cloture rule would undoubtedly have some adverse consequences. But these would be remediable. And in the long run, it would have the important and salutary effect of forcing voters to take more care when choosing their federal senators. No longer could senators hide behind the filibuster on sensitive national issues, claiming to be on the seemingly popular side without having to put their vote where their mouth is. They would have to take a clear position. This would be helpful information for voters and thus tend to improve public policy. P.S. There’s an exception, in Senate rules, to the filibuster-for-legislation. It’s called ‘budget reconciliation.’ A so-called reconciliation bill can pass the Senate with a simple majority rather than three-fifths so long as it only affects the deficit and only increases the deficit (for good or ill) during the first ten years. Every provision of the bill must pass the so-called Byrd Rule test, which says that a provision must have direct fiscal impact (that is, it may not affect the deficit only incidentally) and may not touch Social Security. This awkwardly shaped loophole is small enough to block good public policy but more than big enough to facilitate bad public policy. When Republicans control the levers, they use it to pass trillion-dollar tax cuts that aren’t paid for. When Democrats are in charge, they use it to massively increase spending. Its existence just underscores the wisdom of getting rid of the three-fifths cloture rule.
Constitutional Amendments
This plank does not include a constitutional amendment, but in the unlikely event that its recommendations fail to end judicial usurpation, as a last resort it proposes an amendment that would restructure the Supreme Court to improve the justices’ incentives.
Benefits
Ends the judicial usurpation of democracy.
Revives local self-government, equal civil rights, and the rule of law.
Promotes civil peace, social concord, and healthy, flourishing communities.
Revised: April 25, 2019.
Published: June 14, 2013.
Author: Dean Clancy.
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