The Tyranny of the Minority

I’ve been unable to blog in recent weeks, primarily due to an extended illness, so there are a number of topics I have missed. I’ll try to catch up on some of them, as I will try to catch up on everything else, probably falling short on all counts.

I guess the big issue of the day is the ongoing fight over Senate judicial confirmations, and it’s a doozy. The point of contention is whether federal judges, in particular at the appellate and, eventually, Supreme Court level, should be approved by the Senate the way they were from 1789-2002, or whether the new tactics first introduced in early 2003 by Senate Democrats will become a permanent fixture.

The new tactic, of course, is the use of filibusters to block nominees from receiving a full floor vote, as mandated by the Constitution. It is the same tactic that southern Democrats used for decades to thwart civil rights legislation from coming to a vote. You will hear the claim that judicial filibusters have always been the norm, but this is misleading at best – the use of filibusters to block judicial nominees who would win confirmation if allowed a full Senate vote is unprecedented, first used after Republicans re-gained control of the body in the 2002 midterm election (and expanded in the 2004 general election). The demand is for, in essence, a minority veto power over judicial nominees, which certainly runs counter to the Constitution.

The motivation on the left side of the aisle is obvious. The voters via their elected legislators, and in increasing numbers, have repeatedly rejected the latter-day liberal agenda. They need a way to circumvent the will of the voters, to impose policy on the people without the consent of the governed. The only way is via a complicit judiciary. Thus the need to try to block the appointment of judges who will not merely interpret the law and the Constitution as written, as the founders clearly intended, and maximize the influence of sitting judges who are willing to legislate by judicial diktat based on personal political philosophy and agenda.

That the intent of the founders was for judges to merely interpret the Constitution, as opposed to expand it on whim according to some mystical “spirit” of the document, is made clear in The Federalist Papers and various personal writings. Alexander Hamilton wrote in Federalist No. 32, “[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution.” Thomas Jefferson wrote, “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. […] The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” That what is now known as “strict construction” was the founders’ vision of the federal judiciary is undeniable.

So, in a nutshell, you can see what is at stake in this debate: governance by the will of the people according to the intentions of the founding fathers, or the usurpation thereof by a tiny but powerful minority. This is truly a building constitutional crisis.

[Thanks to The Federalist Patriot for the Hamilton and Jefferson quotes above]