A Plan to Renew the Promise of American Life, Plank 3
Plank 3. End judicial usurpation
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, by altering the number of seats, either by attrition or legislation.
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. Always put the Constitution first. In judging eschew a blind deference to legislative majorities. In legislating eschew a blind deference to unelected judges and bureaucrats.
3.7. If the foregoing reforms prove insufficient to end judicial usurpation, as a last resort restructure the Supreme Court to permanently improve the justices’ incentives. Specifically, amend the U.S. Constitution to provide that henceforth justices of the Supreme Court will be appointed 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.
Jefferson once warned that the Supreme Court could, if not carefully watched and controlled, impose on the republic ‘the despotism of an oligarchy.’ Today we live under that despotism.
Judicial usurpation—the assumption by judges of powers beyond their authority—is now a deeply entrenched and, alas, widely accepted feature of our system. The judiciary, our servant, has become our master.
Our only peaceful recourse at this point, I believe, is to address the problem at the root. To save the country, we must reform the judiciary.
This plank—in some ways the most important—is intended to help us carry out this essential reform in a peaceful and prudent way.
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, and 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.
And because in our time the federal judiciary has exceeded its powers, to the detriment of our natural rights and civil liberties, we have reached a moment when a serious program of reforming the judiciary is, alas, no longer avoidable.
My proposed reform strategy has a number of facets, but it can be summarized primarily as populating every court with principled originalists and curbing those courts’ powers where experience has shown those powers to be too great or too prone to abuse. Pick principled judges at every level, and legislatively restrain the courts where clearly necessary.
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 light of the natural-justice principles of the American republic, without regard to his own personal 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 new heavens of the heart’s desiring.
The principled originalist is therefore a textualist, but also more than that. Yes, he 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. And yes, he strives to find the original meaning of every word in the text the light of every other word. But he will not put on blinders. He will not limit himself merely to the text, to the detriment of its purpose. He will take care to consult the relevant legislative history and contemporaneous dictionaries and other evidence to get an understanding of the intentions and understanding of the drafters and especially the ratifiers of that text. In short, he will reject the notion of a ‘living’ constitution whose meaning changes with changing opinion and fashion. The whole point of having a written constitution is that its meaning does not change. We want our constitutions good and dead. If the Constitution is found wanting in some particular, the people can always formally amend it.
But, as I’ve said, the originalist must be ‘principled,’ not just in a moral but in a philosophical sense. He must defend the principles that the constitutional text exists to protect. And by these I of course mean the natural justice principles of the Declaration of Independence. For an introduction to these principles, I recommend two of our finest living natural-law 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 when they attempt to violate the first principles of the republic 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 general 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 favor justice and overturn precedent.
Correct legal reasoning in our system weighs not just whether a law was passed in the proper form by the competent authority—whether all the procedural boxes have been checked—but also whether that law is justified in light of the republic’s founding principles. A legislative majority might, for example, 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. It is most assuredly not neutral on them.
The best living example of a principled originalist, in my view, is Justice Clarence Thomas. Let us have more like him. /1
The Tempting of the American Judiciary
Why has the American judiciary become despotic? I would say the temptation has been there from the beginning. 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.
The U.S. Supreme Court is the most powerful branch, potentially, because its power is more extensive than is the power of Congress or of the president. While the president cannot issue an order to a governor, and Congress cannot issue an order to a state legislature, 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 a good one, 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.
Judicial independence is a necessary tool for protecting our natural rights and civil liberties. Federal judges serve for life, and are hard to fire, precisely so they can serve, not transient popular majorities, but the permanent majority as expressed in the constitutional text. They must, as we’ve said, enforce not only the written law but also the natural rights the written law is meant to protect.
Judicial independence, properly wielded, is a bulwark of freedom. But with that awesome responsibility comes the need for greater-than-ordinary virtue.
The American federal judge is subject to greater-than-ordinary political temptation. The more independent the judiciary, the greater its ability to usurp the non-judicial powers of government and to engage in judicial despotism.
In a more traditional, Old World system, judges pose less of a danger, because the powers of government are intermingled. The judiciary is subordinate to the king and parliament. The judges are servants and cannot effectively check the combined legislative-executive power, which is supreme. If the courts go wrong, it is because their masters, the king and parliament, have gone wrong. A judge in an Old World system cannot wield despotic power. In our system, by contrast, since the judiciary is on the same plane with the legislative and executive branches, it cannot be pressured easily. When the Supreme Court 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 made 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.
Thankfully, 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. Defiance has been successful a number of times, most famously in 1862, when, 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.
But when the Court is stubborn, we must also try roundabout strategies. For starters, we can change who sits on the Supreme Court as they retire or die, or alter their number by statute or attrition. Those remedies will, I hope, be sufficient. Congress has changed the number of justices five times since 1789. Some may call that ‘court packing,’ but there is nothing impermissible about changing the number of justices, and there is nothing unconstitutional about trying to set the Court straight. The Constitution is not a suicide pact. Congress has the power to create and destroy courts inferior to the Supreme Court, and to alter their jurisdiction by ordinary legislation, subject only to the restrictions set forth in Article III. If Congress can wield these powers, which obviously affect the judiciary, why can it not also wield its well-established power to change the number of justices or alter the Court’s ideological makeup? Those who claim that ours is a ‘living’ constitution can have no principled objection to ‘court packing’ or ‘court stacking.’
If the foregoing strategies fail, then, yes, we must formally amend the Constitution. But how? Should we prefer narrowly targeted amendments focused on policy issues, or structural amendments that reform the judiciary itself? The superiority of the latter becomes apparent when one reflects on several facts. First, amending the Constitution is hard, and rightly so. This remedy cannot be resorted to, too often. Second, even when successful, an amendment can be thwarted by a really stubborn and crafty Court majority. Third, an amendment, unless thoughtfully framed and carefully worded, can produce unintended consequences. And finally, we cannot possibly fix every judicial error with a separate amendment. There are just too many.
A structural approach is more likely to work. Only a prudent, thoughtful structural reform can induce the Supreme Court to voluntarily reverse itself on a host of fronts, and prevent it from relapsing, without unduly diminishing its independence. Permanent reform means permanently improving the justices’ behavior, which in the long run will only happen if we change their incentives. And as far as I can see, the best way to do that is to change who appoints the justices and how long they serve.
To be clear, I concede that this last option is a radical one, in the good sense of ‘radical,’ and a last resort. If we can right the ship without formally amending the Constitution, that is preferable. But if nothing else works, we should not hesitate to be a bit ‘radical’ in our remedy, lest we remain subject to ‘the despotism of an oligarchy.’
What Is the Problem?
What is the problem we’re trying to solve, exactly? There are basically five problems, in my view.
- 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, especially the Taxing and Spending Powers Clause, the General Welfare Clause, the Commerce Clause, the Coinage Clause, and the Necessary and Proper Clause, to the benefit of the central government at the expense of the states and private individuals, and a misreading of the Ninth and Tenth Amendments, which were added to the Constitution precisely to prevent latitudinarian readings of federal powers.
- Separation of Powers. The Court has ceased to enforce the separation of powers, a key safeguard for liberty. It has done this through an excessive deference to federal administrative agencies wielding legislative powers. Those powers have either been usurped by the agencies or unconstitutionally delegated to them by Congress.
- Judicial Legislation. The Court has itself usurped legislative powers, by creating new ‘fundamental’ rights out of whole cloth, rights no one may prohibit or even reasonably regulate, without the Court’s permission. It has done this primarily by way of an unhistorical reading of the term ‘due process of law’ in the Fifth and Fourteenth Amendments. The effect has been to radically transform American law in ways that deeply divide citizens, with no hope of reasonable compromise, and has thus instigated a kind of ‘war of all against all’ and thus destroyed the possibility of social peace, tranquillity, and concord. Nothing has embittered our politics, and therefore nothing threatens our practice of self-government, like the Supreme Court’s various usurpations under the guise of protecting ‘fundamental’ rights. If any problem in our national life cries out to heaven for reform, it is this one.
- Enumerated Rights. The Court has 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 due process clause of the same section.
- Unenumerated Rights. The Court has often neglected to protect the retained, unenumerated rights of individuals from government infringement, in cases where positive law is ambiguous enough to allow for equitable interpretation. That is, the Court has failed to follow the old rule which holds that natural rights should control in the absence of sufficiently explicit positive law to the contrary.
The cumulative result of these various errors has been a consolidation of power at the national level and a concentration of power in ever fewer hands. Power has moved from the states to Washington, and from Congress to the President and the Supreme Court. This process of centralization has gone on for so long, and reached such an intense level, that the ordinary processes of election, representation, and legislation can no longer be counted on to check it. On the contrary, they sometimes help ensconce it. Take, for example, the Senate’s filibuster rule. Once it was a useful tool for blocking or slowing federal power-grabs. Now it facilitates them, by making it nearly impossible for the people’s representatives to overturn the errors of federal judges and the excesses of federal bureaucrats. The centralization of government power has become a one-way ratchet.
Meanwhile, the states have become so dependent on federal grace and largess that they no longer act as if they were truly independent sources of authority, with their own duties and powers. More and more, they function like mere provinces or administrative districts of a single consolidated state.
In weakening the principles of federalism, separation of powers, and enumeration of powers, the Court has undermined the republican character of our institutions, moving us dangerously in the direction of oligarchy and monarchy. As these errors have rooted themselves in the law and have grown and spread unchecked, the Supreme Court has quietly morphed from the least to the most dangerous branch, from a modest enforcer of constitutional limits to a part-time super-legislature whose radical enactments are well-nigh unrevisable. The U.S. Supreme Court has become the American equivalent of Iran’s Council of Guardians, a grand censor wielding effective veto power over everyone else in the system. Judicial independence has become judicial domination. We live under the ‘despotism of an oligarchy.’
To correct the aforementioned problems, we have to remind ourselves of, and re-commit ourselves to, the first principles of the constitutional system bequeathed to us by our ancestors. Space does not permit an extended recitation of those principles here, but interested readers may wish to browse my own list of the most important ones.
The Supreme Court isn’t going to reverse its errors without pressure. Like any human institution, it is loath to admit mistakes and reluctant to relinquish power. Here are some possible options for ending judicial usurpation, with a brief thought or two on each.
a. Choosing better judges. By ‘better judges’ I mean, as I said at the beginning, principled originalists with an ample paper trail, that is, the opposite of stealth candidates. This idea 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 of course even a good judge makes an occasional mistake. So while appointing better judges is necessary, it is not sufficient. /2
b. Impeachment. Long historical experience shows this particular tool works pretty well for policing ordinary crimes and malfeasance by judges but is ineffective as a tool for punishing erroneous judicial reasoning. Jefferson dismissed it as a ‘scarecrow,’ meaning the kind that crows enjoy resting on.
c. Nullification by state governments. State nullification or principled resistance of unconstitutional federal laws—the cherished ‘rightful remedy’ of John C. Calhoun and the Confederates—is politically and legally problematic, to say the least. Tainted by a long association with racism, which makes it impossible to defend, it only seems to work well where the feds already seem willing to reconsider an erroneous policy (for example, in recent years, on marijuana regulation). It does not work so well when it comes with a threat of violence (as in the Tariff Crisis of 1828-1832). This option should be used judiciously, with a preference for trying all other remedies first. Note: I’m speaking here only about nullification by state governments. I have no problem with nullification by individuals or juries.
d. Subject-specific constitutional amendments. This one is worth attempting, but hard to pull off. There are too many errors to correct. And of course there’s always a risk that the Court will simply ignore or misconstrue the amendment. This is why I think we ultimately have little choice but to reform the judiciary itself.
e. Structural and procedural reforms of the judicial branch, by way of legislation. The following are some of the legislative reform ideas I’ve heard mentioned: 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 judicial nominations harder or easier to confirm, depending on what kinds of nominations are expected (for example, by eliminating senators’ ability to filibuster nominations or curbing the custom of permitting senators to block a vote on a nominee from their own home state (‘blue-slipping’)). While any or all of these structural and procedural reforms might be tried, the first (changing the number of justices) is the only one that strikes me as likely to have the desired effect. I would just change the number of justices to give principled originalists a majority, and leave it at that. If that reform doesn’t have the desired effect, then I would go ahead and reform the judiciary via constitutional amendment, as specified in the next point. Side note: Should the number of justices should go up or down? I could go either way. My own preference is that it go up, in order to make it harder for fixed partisan blocs to congeal. But expanding the Court requires legislation signed by the president. It is easier to let it go down through attrition. The Senate can simply announce that it will not confirm any Supreme Court nominee until the Court has dipped below, say, six or seven justices. (Six was the original number, in 1789.) But the number should be dictated by the goal, which is to give principled originalists a majority—and thereby save the republic. (P.S. Here’s a pretty good summary of the case for shrinking the Court through attrition.) /3
f. Structural reforms of the judicial branch, by way of 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. A constitutional amendment, as I’ve suggested, should be regarded as a last resort. But at the moment it also seems very close to being unavoidable, if we are serious about effecting permanent, positive changes in judicial behavior. If we do pursue an amendment, the best approach, I would argue, is to 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 was first proposed, I believe, by Professor Michael Farris.) To avoid the downsides of having the people of the states elect the justices, the amendment should require that the governor nominate and the state senate confirm or reject justices, just as occurs at the federal level now. How would state appointment of justices benefit us? 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 diversity would make razor-thin majorities less common and consensus-based rulings more common. It would be much harder for any one justice to become the all-powerful swing vote on every important issue. That would make radical legal impositions less frequent. Third, the quality of judging would improve because justices would know their hold on power is brief, thanks to the constitutional term limit. The average age of justices could rise, but a smaller percentage of justices would serve past the point of senility, so, one hopes, the average level of wisdom and sharpness of mind 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, I am pretty sure the worst Supreme Court decisions of the past would have been overturned by now, and that we’d have seen fewer bad new decisions. Some skeptics may object that this kind of restructuring would make the law too changeable and uncertain. I disagree. I think the stability of the law depends principally upon, not how long judicial rulings endure, but rather on whether, and to what extent, judicial rulings are perceived to be true and just. The stronger that perception, the more stability in the law.
Afterthought: What About Civil Rights?
Some who oppose the remedies I’m recommending here may try to smear them as a threat to civil rights. Baloney. Restoring the lost Constitution means restoring the color-blind Constitution. 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 famously tolerated slavery, but it never endorsed it. The very words ‘slave’ and ‘slavery’ were omitted because the framers knew they were compromising with evil in order to secure liberty and justice in the long run. They hoped they were placing slavery ‘in the course of ultimate extinction.’ After the Civil War, the Constitution mentions slavery only to abolish it. It is easy to discern from the original meaning of section 1 of the Fourteenth Amendment, and the often-overlooked Thirteenth, 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. While Congress does not have an unlimited right to interfere in the domestic affairs of the states, these constitutional amendments give it sufficient power to enact federal civil rights statutes nullifying state-sponsored class legislation, segregation, Jim Crow, ‘separate but equal’ public accommodations rules, and the like. In legal terms, I think we can confidently conclude that the Court’s reasoning was wrong in Cruikshank (1876), the Civil Rights Cases (1883) and Plessy, but right in Brown v. Board (1954) and in upholding the Civil Rights Act of 1964. (I quibble with the exact 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 framers and ratifiers of the Fourteenth Amendment could not possibly have intended to end racial segregation in the public schools, because they themselves were doing that very thing at the very same time they wrote and passed the amendment, I reply: this is a good example of a case where Michael McConnell’s equitable interpretation principle comes into play. The framers and ratifiers may have been hypocrites on the issue of segregated schooling, but the words they wrote have clear, unavoidable implications that make school segregation unconstitutional.) In short, originalism emphatically supports civil rights, while ‘living constitutionism’ renders civil rights insecure, because it is essentially arbitrary.
1/ But Justice Gorsuch may be giving Justice Thomas a run for his money.
2/ Professors Randy Barnett and Josh Blackman have helpfully suggested six rules that should guide the selection, investigation, and confirmation of future judicial nominees. They are: 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).
3/ Update, April 6, 2017: The filibuster may be on its way out, and that’s a good thing. The Senate has already changed its rules to eliminate senators’ ability to filibuster judicial nominations. It did this in two stages. First, in November 2013, with the Democrats in control of the Senate and White House, the Senate eliminated the filibuster for all judicial (and executive branch) nominations except for the Supreme Court. Then, in April 2017, with the Republicans in control of the Senate and White House, the Senate eliminated the filibuster for Supreme Court nominations. So now, for nominations of any kind, a simple majority can end debate. That’s a positive step, since partisan obstruction of executive nominations had in recent years become excessive and harmful to the public interest. But the filibuster rule remains in place with respect to legislation: to end debate on a bill or resolution requires the consent of three-fifths of the entire Senate. I hope the Senate will take the next step and repeal the filibuster rule altogether. That rule certainly had its benefits in the pre-New Deal era, when the federal government was small and constitutionally limited, but in the present era, when government is big, unlimited, and increasingly unlawful, the rule merely acts as a one-way ratchet for a never-ending growth of government and the ever-deepening embitterment of our politics. Retiring the filibuster rule would also have this important and salutary effect: it would force voters to take more care when choosing their federal senators. No longer could those senators hide behind this powerful parliamentary blocking device on sensitive national issues. Instead, they would be forced to take a clear position on each issue, on the merits, thus providing their constituents with vital information that, today, is too easily hidden.
This plank (contingently) includes a constitutional amendment providing that 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 twelve years. To avoid the downsides of popularly electing judges, the amendment would require that the governor nominate and the state senate confirm or reject, just as occurs at the federal level now. But note: this proposed amendment would only be necessary if altering the quality or number of justices proved insufficient to end judicial usurpation.
Will do much to revive the ‘American way’ of decentralization, local self-government, impartial justice, and equal civil rights for all.
Will encourage greater civil peace, social concord, and healthy, flourishing communities.
Revised: April 25, 2019.
Published: June 14, 2013.
Author: Dean Clancy.