There is another instance in which I feel I should address a column written by somebody, falling under the same rubric as a posting last week to reassure the public that not everybody in academic is so bereft of actual knowledge and logical thinking that state taxpayers and those paying tuition aren’t throwing their money away. This is when a college student makes us look like we haven’t done our jobs.
Justin Shatwell gives us such an unfortunate example. Had he submitted this column about judicial activism as an answer to a question on one of my American Government exams, it would have been clear he neither paid attention to the lecture or textbook materials about the American judiciary and system of government.
In the column is a ton of ignorance about the views of the Framers of the Constitution about the role of the judiciary (easily researchable through the Federalist Papers), stunning naïveté concerning judicial philosophy and behavior, a failure to understand the concepts of popular sovereignty and control of government, and a misunderstanding of the relationship between law and morality.
One wonders whether Shatwell has any inkling of the nature of the present American judiciary:
The higher echelons of the judiciary are appointed, not elected, and are given lifelong terms so that they can rise above politics and do their jobs honestly. They are not expected to bow to the whims of the majority. Rather, it is mandated that they answer only to justice.
Actually, all of the federal judiciary (legislative courts aside) is appointed. Lifelong terms may allow judges to “rise above politics,” but simultaneously, conditioned only by the threat of impeachment (which is so difficult that it seldom occurs and not in the twentieth century for policy reasons), it also allows them to substitute in their own agendas. Even if in substituting their own agendas judges think “they answer only to justice,” it is their idiosyncratic version of justice, not some universally-agreed upon standard of it. In short, judges therefore become policy-makers, a view that ran completely against the grain of the Framers' intentions that the judiciary only settle disputes.
In fact, the Framers made it clear that the “majority” should always control the judiciary. This is why they gave Congress, elected by the people (both chambers directly since 1914) the power to change the jurisdiction of any court, in addition to the power to impeach (as well as several others – Senate confirmation of judges, funding of the judiciary, etc.). It shows absolute ignorance to argue otherwise.
But probably the most incredulous statement is that the Framers "entrenched the judiciary so that it could fight injustice from every source, including the will of the people."
This is nowhere near to what the Framers thought (indeed, this statement is contradicted in Federalist #78). Because the Framers saw men and their institutions as fundamentally flawed, they harbored no illusion that any institution, including the judiciary, could be designed to produce "justice." Instead, by the use of separation of powers and checks and balances, they sought to minimize the destructive power of government controlled by a faction by countering "ambition with ambition," giving flawed groups the ability to keep each other under control, maximizing the chances that only things seen as beneficial by enough interests could become policy.
Shatwell turns this philosophy completely on its head. His view destroys the very notions of checks and balances and separation of powers. He seems to believe judges are Platonic guardians, a super-legislature wise beyond all other policy-makers who somehow put aside politics and rule in the best interests of everybody, a view completely at odds with the fundamental philosophy behind our government.
He cannot even support his thesis by arguing the judiciary always is right. While the federal judiciary did empower the federal government to intervene in a state function in the case of desegregating education, a policy now virtually universally accepted, only a decade earlier the court essentially declared the Pres. Franklin Roosevelt’s internment of Japanese-Americans was perfectly constitutional, a move now almost universally condemned. So how can the judiciary be such an institution immune from criticism, an institution which makes these incredibly wise decisions, when it makes such stupid ones from time to time? Obviously not, because it’s not what Shatwell has invested in it.
Once again, please do not judge what is going on in academia by the remarks of somebody identified as a senior history major who obviously has learned next to nothing about the history and philosophy behind our Constitution. Believe me, some of us really are trying to educate, and many of our graduates do emerge with genuine knowledge and an ability to critically appraise it.
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