Friday, April 1, 2011

Judicial Activism? That's What They DO, Son.

The rule of law seems to be holding up in Wisconsin, at least for the moment. When Governor Teabagger (a wholly-owned subsidiary of Koch Industries) and his cronies, minions and lackeys again made noises about ignoring a direct court order not to implement their union-busting bill this week after a second loss in court, the judge stepped in a third time to declare that such action was absolutely contrary to law and would result in punishments.

And with the usual squawking about how they would be vindicated in the long run, Governor Teabagger (a wholly-owned subsidiary of Koch Industries) backed down.

This is entirely appropriate.

Of course he’s going to squawk. Of course he’s going to criticize the judge’s ruling. Of course he’s going to claim that he will win in the end. What else would he do? I would expect no less, and I would do the same if a ruling went against me. So as long as he actually follows the court order, I’ll overlook all the rhetoric as standard operating procedure for anyone on the short end of a judicial decision and be glad that the constitutional crisis has been put off for at least another day.

We have reached the point where having our government follow the law counts as a victory rather than an expectation.

What I find annoying, however, is the bleating coming from the Fitzgerald boys - State House Majority Leader Jeff Fitzgerald and State Senate Majority Leader Scott Fitzgerald, the leaders of the aforementioned cronies, minions and lackeys.

When Dane County Circuit Judge Maryann Sumi ruled that the elder Fitzgerald boy’s end run around her first ruling was illegal under Wisconsin law and that the union-busting bill was not in fact law just because he said so, baby brother Jeff accused Judge Sumi of “interjecting herself into the legislative process with no regard to the state constitution.” Big brother Scott, for his part, declared that Sumi’s enforcing the laws of the State of Wisconsin was “judicial activism at its worst.”

Uh, no.

What we have here is a catastrophic failure on the part of the Fitzgerald boys to understand how the American governmental system actually works.

Here is a hint: the mere fact that you are in office does not entitle you to do whatever you want.

There are rules to be followed. Rules that are there to make sure that this republic does not degenerate into a dictatorship. Rules that are not to be flouted save at your cost.

Query: What do right-wingers mean when they yell and scream about “judicial activism”?

Response: They mean that a decision has gone against them.

Query: Why do they not like this?

Response: Because like small children, they are angry about not getting their way.

Query: Why is this not a bad thing?

Response: Because the Founding Fathers set it up that way. Because that’s what American government is supposed to look like. Because that’s how American government is supposed to work. Because the whole point of a republic is to provide checks and balances between the branches of government, so that no branch will be tempted to squash the others and each branch will be held to account in following the rule of law.

Honestly, people, it’s not that hard.

Let’s review.

The judicial branch of a republican form of government has a very specific role. It is a role that was largely created here in the United States, surprisingly enough.

As I said in an earlier post, this country was founded on the ideology of classical republicanism, a theory that argued the need for a properly balanced form of government that would check power and preserve liberty. In England, where as far as the colonies were concerned this idea originated, this was done by mapping the three branches of government onto the three broad divisions of English society. You had the One, the most important guy in the kingdom, who was the Monarchy. That was the king. You had the Few, who were the Aristrocracy – they got the House of Lords. And you got the Many, the rest of us, who were the Democracy and got the House of Commons. A properly balanced republican government would balance the interests and powers of these three sociological groups, and liberty would be preserved against power.

In this setup, judges were considered agents of the One. They were classed under the Monarchy, along with the army, the tax collectors and the sheriffs. Their job was to keep the King’s peace and function as part of the law-enforcement apparatus.

When the United States was founded, classical republicans had something of a dilemma – there was no One in the new republic, nor really was there much of a Few. There was just Many.

So the question arose: what is this new balanced republican government supposed to balance in order to check power and preserve liberty?

And here John Adams stepped in with the Massachusetts Constitution of 1780, the oldest written constitution still in effect in the world today and the model for the 1787 Federal Constitution that we live under. Adams argued that instead of balancing sociological groups – One, Few, Many – with their own branches of government, a properly balanced republican government in America would balance the functions of government. Each branch of the government would be separated not by who it represented, since each branch would represent everyone here, but instead by what it did, by function.

Mapping the Executive onto the One, the Monarchy, wasn’t hard. That’s largely what the Monarchy did anyway. Likewise mapping the Legislative onto the Many, the Democracy, wasn’t hard either, for the same reason.

But who were the new Few?

Here John Adams made a very clever move. He took the judges out of the Monarchy category – removed them from the Executive Branch, in the American context – and elevated them to their own branch, the Judiciary.

No longer were they merely law-enforcement tools subservient to the Monarchy, nor would they be subservient to the Executive in the new arrangement. Now they were a fully co-equal branch of a properly balanced republic, charged with protecting liberty and checking power by ensuring that the other branches stayed in their place and did not violate the rule of law.

It took some time for this to be established at the federal level – Marbury v. Madison doesn’t get decided until 1803 and even then the principle of judicial review remained tenuous for a long time after – but that’s how the system works.

That’s how it’s designed to work.

And that’s why all that steaming load of nonsense about “judicial activism at its worst” is just that – nonsense.

Folks, that’s what judges do. That’s what they’re supposed to do. That’s what they are required to do.

And any who refuse to understand that confess a doctrine that is alien to America.

When the legislature runs amok, when it violates the law in its rush to force a bill down the throats of its citizens, when it violates the Constitution through its actions, it is the responsibility of the Judicial Branch of a properly balanced American republican government to step in and rebuke the legislature for its crimes.

You may not like the decisions – certainly there have been a lot of bad decisions in American legal history, and there are specific remedies for that sort of thing. You can appeal. You can pass laws vacating the decision. You can amend the Constitution if mere laws aren’t enough. But you cannot in good conscience argue that the judges are somehow out of line in doing their jobs.

So when you hear someone complaining about “judicial activism,” remember that what you are really hearing is them confessing, “I’m ignorant about how American government actually works and petulant about not getting my way,” and feel free to enlighten them.

Use small words.


Janiece said...

David, I totally love you.*

*In a completely platonic, non-stalkerish, I'm sure your wife is a lovely person just as my husband is and so please don't feel uncomfortable with my declaration kind of way.

Warner (aka ntsc) said...

Hi Janiece.

I won't go quite so far as Janiece, but it is damned good.

Eric said...

Well done yet again, David.

David said...

Thank you! It's good to hear nice things from people I respect.

KimK said...

I love that you all love him! :)

Dave, I believe that it was Senator Mark Miller who said in his comments yesterday that in the future Judge Sumi would need to continue to deliver her judgements in short declarative sentences. Pair that with the small words you suggest, and I believe that we might get somewhere!

LucyInDisguise said...

Ardent student of history here. However, I spent way too much time hanging out with Cleo, Alexander, Julius and the whole "Cradle of Civilization" crowd.

Through your writing, particularly from posts such as this one, I am only now coming to realize just how ignorant I am regarding the "Behind the Scenes" back-stories of the founding of this nation.

David, would you please put up a "Recommended Reading" list of books that cover this aspect of the formation of our government, preferably by authors who explain things as clearly and lucidly as you have here?

If no such books exist, would you do us all a favor and write such a book?

And could you please have that book ready NLT the 15th?



P.S. - Can't decide who deserves the 'man-crush" more: you, or Jim over at StonekettleStation. Guess you'll just have to settle for the divided attention.

David said...

@Kim - there you have it folks: I have an intellectual hall pass, right from the source. Stand back, gents, she's mine. :)

@Lucy - thanks for the kind words! If it comes down to it, I think I could live with being shared with Jim. ;)

I'll work on such a list for a new post. It may take a bit of time, because a) the exact role of republicanism is a thorny issue among historians who study it, and b) there is a reason why people become historians instead of best-selling novelists and a lack of good ideas isn't it.

Watch this space...

I might need a list from you, too, as my expertise peters out fairly quickly once you get earlier than about 800AD.

LucyInDisguise said...



carpolo,interesting new take on water polo. Similar to the mormon 500, any weekday, 6:00 am to 10am, I-15, SLC, UT.

Bring your best armor.

Janiece said...

See, David? I'm not the only one who thinks you should write a book that's not-your-dissertation.

P.S.: Hi Lucy.

Beatrice Desper said...

Bravo. From a former con law student who remembers that so called "judicial restraint" is a political decision. Keeping the status quo means that one approves of the political status quo.