Sunday, September 16, 2018

Our Founders never thought the courts had the final say — and neither should we

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“Whenever a free people should give up in absolute submission to any department of government, retaining for themselves no appeal from it, their liberties were gone.” ~Abraham Lincoln, citing Thomas Jefferson
As a conservative who believes both in conservative policy outcomes and the authentic interpretation of the Constitution and the Fourteenth Amendment, I wish we had nine Clarence Thomases on the Supreme Court and like-minded judges on the lower courts. I wish every policy emanating from Congress or state legislatures that I felt violated my interpretation of the Constitution would immediately be placed in front of this eminent tribunal with life tenure so that it could be vetoed. Yet I recognize that this is a system more tyrannical than the one we fought in 1776. However, it is indeed the system we now face, except that the overwhelming majority of judges – both Republican and Democrat – do not interpret the Constitution but make it up as they go.
A republic or a dictatorship of the robes?
It is clear that Democrats believe the courts are the final say on every constitutional question – no matter how absurd their ruling is. They further believe that once a court uses this phantom “veto” power a single time on the progressive side of the question, even when that ruling is overturning 200 years of laws, political practices, customs, and prior court precedent, it is unassailable, not just by the other branches of government but even by a subsequent court.
Republicans disagree with the latter point, as they feel another court can overturn a previous court, but they fundamentally accept the premise that a court opinion in an individual case can set broad precedent that is self-executing and universally binding as the law on everyone and out of reach of the other two branches. As both Sen. John Cornyn, R-Texas, and Judge Kavanaugh indicated during questioning last week, the only recourse for Congress is to attempt to pass a constitutional amendment.
This is simply not true and is a threat to the very foundation of our system of government. It is true that there is a concept of res judicata – finality in judgement – for individual plaintiffs in civil and criminal cases. But if the courts in that process are going to engage in review of legislation and broad political issues affecting the entire country in order to resolve a case or controversy, there was never any understanding that we’d apply res judicata to judicial review.
The truth is that court opinions are not self-executing and universally binding as broad legal and political precedent on the other two branches. There are numerous tools at the disposal of Congress to prospectively and retrospectively check the judiciary through legislation, not by constitutional amendment, and the federal courts only have the jurisdiction vested in them by Congress. --->
Read the rest from Daniel Horowitz HERE.

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