Misc. Ramblings

Insert disclaimer here. WARNING: Political discussion follows. These are my own views.

It can be argued that taking any GoodThing, to an extreme, can transform it into a BadThing. For example, in the tension between states and federal rights, finding the appropriate balance may shift from time to time. But our republic, and the freedom we enjoy, depends on finding an acceptable balance, rather than going to either extreme.

Our Founding Fathers wisely created a national government in tension with its states. In concept, this is much the same as the three separate, but equal branches of government. Each would have its individual powers that the others would not, under the grand experiment that by doing so, each would check and balance the others so that tyranny would not reign over our land.

This balance is, in some cases, a dynamic one. In other cases, we may have established certain areas where one takes dominance over the other. But Madison, writing in The Federalist No. 45 said "Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale."

In The Federalist No. 46, Madison goes on to say

The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents.

Much has changed since these words were in written in 1788. But the central truth remains the same, we are one nation.

It may now seem quaint, but at one time states printed their own currency. While this certainly decentralized currency powers, it also acted as barrier to internal and external trade (few companies or countries would wish to deal with 50 different currencies when it could deal with one).

Secondly, at one time, the individual states were responsible for their own security. By that I mean there wasn't a federal army, navy, or air force. Clearly, this presented a very weak front to any large power that wished to pick off individual states, one at a time. Eventually, the common defense required the creation of a central command and structure. However, to this day, not wanting to cede all military powers to the federal government, states continue to fund their own local militias.

Yet, we are one nation.

With this background, there is a recent essay in the Weekly Standard entitled "Back to Federalism" by David Gelernter.

I'm afraid I'm not familiar with the publication nor the author. No doubt, this is because I'm just a poor, unwashed country boy from Palolo Valley and surely I don't have the education that Mr. Gelernter has. So, what few cogent thoughts I can string together will, probably, not rise to his level. That said, I will try, anyway.

The essay begins by referring to an earlier article by James Q. Wilson in which, apparently, Wilson maintains, as Gelernter puts it, that our country is "polarized to an unprecedented extent; bitterly divided". Gelernter goes on to say that conservatives must "confront this problem and show the country how to solve it. Not to solve it is to invite catastrophe."

I think most polls indicate that on some, but not all issues, our country is divided. But to say there would be catastrophic results if we don't, somehow, change this is, in my opinion, at least over reaching.

Why? Because we are not divided on all issues. In fact, I would guess, there are but a few in which there is such polarization and for those, it is unclear why something must immediately be done or catastrophe will surely befall us.

Yes, the far left and the far right have done their best, for its own reasons, to frame differences as polar opposites - with no room for compromise. But that doesn't mean the majority has to blindly follow either side over a cliff of doom. Common ground can and should be found. Extremism, on either side, does not serve the country well and is, in my opinion, leading to catastrophe.

But even if we accept that polarization is a problem that must immediately be solved, and forget that extremists are the ones creating, aiding, and abetting such polarization, what are his solutions?

Gelernter puts forth two proposals to limit the constitutional powers of the courts: "a constitutional amendment, and congressional legislation limiting the federal courts' jurisdiction."

In explaining his choice of solutions, Gelernter seems to backhandedly acknowledge that getting a constitutional amendment passed would take a long time and perhaps, and I'm speculating here, reflecting a world view of the general public that tends to hold the middle ground that is counter to his ultra conservative views, could fail.

So, I presume, since the author apparently feels that not only is polarization a problem, but that time is of the essence, he focuses on his second solution.

The essay takes the Judiciary to task and says it (the federal courts, in general and the Supreme Court, in particular) is the source of what the author terms "the collapse of federalism." The author goes on to say that the "collapse gathered momentum with the Supreme Court's 1973 decision in Roe v. Wade, which legalized abortion..."

It is curious how some conservatives keep bringing Roe v. Wade back. Its been over 30 years. I realize, to this day, that there are those who sympathize with the South in the war between the States but the majority have long since moved on. Why can't these anti-abortion people do the same?

Then the author drops this line: "And of course it's true that, when unelected judges override elected legislatures, democracy loses." This appears to be an aside, so perhaps the author did not give the statement sufficient thought before committing it to paper. I know I've done the same more than once and lived to regret it. Or, perhaps I misunderstand what he is saying.

But he seems to be saying one of two things: either judges should be elected or the judiciary is not part of the Constitutionally mandated democratic process of checks and balances. I doubt he is referring to the electing of judges, since in some jurisdictions, some judges are elected. But maybe I'm wrong. Perhaps he is calling for the election of federal judges. As to his second point, I will not reiterate what he surely knows the Constitution says about the judiciary and its place among the three branches of government.

However, rather than usurping the powers of the states or other branches of federal government, I note that the very Federalist Papers that he quotes in his essay, to the contrary say in Federalist No. 78, written by Hamilton, the following:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Hamilton further writes:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. [Emphasis added.]

Rather than the pointing to the judiciary as the source of their problems, extremists should look in the mirror and realize that they are the source error. Rather, these extremists should come to understand that democracy depends on a judiciary that is independent from the other branches of government. Rather, these extremists must come to accept that democracy depends on this delicate balance and to ham handedly upset this balance invites or even incites catastrophe down onto everyone.

In summary, the case, in my mind, is not made that a clear and present danger exists. The case is not made that if there is a present danger, that the solution is to chop down the third branch of government.

I know of no public good that can come from instituting Gelernter's one-sided solutions and, I would claim, that to do so could bring about the very dissolution of democracy that he is saying he wishes to protect.

Aloha!