Tuesday, December 20, 2011

Ron Paul's chimerical federalism

Ron Paul thinks social issues should the province of the states rather than the federal gov’t. Yet this is obviously nearsighted. What it overlooks is the fact that, as things currently stand, a red state can only be as red as a federal judge with blue state values will allow it to be. Moving from Massachusetts to Texas is ultimately no escape. As long as the federal judiciary has the final say on social policy, federalism is a dead letter.

He’d like to curtail the jurisdiction of the federal judiciary in some matters, yet–needless to say–any law curtailing the jurisdiction of the courts would itself be subject to judicial review. You don’t have to be as bright as a tree full of owls to figure that out. It happens on a regular basis. What Congress proposes, SCOTUS disposes. How long does it take a 12-term Congressman to pick up on that?

In theory, there are at least two ways to readdress that problem. One is to challenge the principle of judicial review. Due to institutional inertia, this has become an unquestioned axiom, yet the question can always be reopened. For instance:

Another alternative is Gingrich’s “Jeffersonian” proposal:

i) Now, I’m not a legal expert, so I don’t necessarily vouch for this strategy. My point is simply that people tend to take the status quo for granted. But that’s something we should be prepared to reexamine.

ii) Some critics act as if this were a fascist coup d’etat. But to my knowledge, Gingrich is not suggesting that the President exercise dictatorial power over the judiciary. Rather, he’s suggesting that Congress pass a law.

iii) The federal judiciary is already politicized. Unfortunately, the federal judiciary has all the benefits of the two elective branches without the accountability. But as long as the judiciary is politicized, why should it be exempt from the same level of scrutiny and accountability as the Executive and the Legislative branches?

iv) State judges are elected officials. They have to face the voters. So there’s no antecedent reason why the federal judiciary should be insulated from the will of the electorate, expressed through the two representative branches of government. If that’s not incompatible with the independence of state judiciaries, why is that incompatible with the independence of the federal judiciary?

v) Some critics are also aghast at the suggestion that judges should have to explain their decisions. Why not? If their decisions are defensible, why shouldn’t they be prepared to defend them?

A basic problem with judicial elites, like any elites, is that they rarely have to play by the same rules as they impose on others.  If they were forced to play by the same rules, it would be a disincentive to their going rogue.

v) One potential objection is that this tactic cuts both ways. Depending on whose in power, both Democrats and Republicans can do it. However, I don’t think that’s a very formidable objection:

vi) To begin with, so what if Scalia or Roberts or Alito had to go before Congress and explain their legal opinion on a particular case? Aren’t they more than capable of arguing for their interpretation? And it would be good for the general public to hear how fine conservative legal minds arrive at their position.

Conversely, if Judge John Jones had to explain his reasoning in the Dover case (to take one example), that would expose the ugly underbelly of judicial activism.

vii) Likewise, the reason that liberals take refuge in the courts is because their social engineering schemes lack sufficient popular support to get through Congress. So I don’t assume that if Republicans could abolish renegade courts, Democrats would have the same success. If liberal initiatives were that popular to begin with, they wouldn’t need judicial activism in the first place.

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