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Will 2020 Be Referendum on Govt by Judiciary?

Will 2020 Be Referendum on Govt by Judiciary?

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Monday, 09 September 2019 02:54 PM Current | Bio | Archive

Whenever one reads "The Federalist," the collection of essays by Alexander Hamilton, James Madison, and John Jay written in support of the proposed United States Constitution of 1787, one is struck by how little the basic issues of forming and running a national government have changed since the late-18th century.

Those essays make clear that the purpose of our national government is to secure the liberty, property, and happiness of our people, and that the greatest threats posed to us are those of designing and selfish politicians, of self-interested political parties, and of foreign threats.

The authors of "The Federalist" understood the inability of most people to look beyond self-satisfaction, and who were aware that resisting the corrupting temptations of political power was nearly impossible.

Their solution was to disperse power, and to create a national system where three separate branches of government would check and balance each other, and where a central government of limited and enumerated powers would be circumscribed by state and local governments.

For some time now our two principal political parties have manifested different understandings of that 1787 Constitution.

Republicans are now firmly committed to seeking to maintain the Constitution’s original understanding, but Democrats, believing that our frame of government unduly oppressed minorities and women, believe that the Constitution ought to be altered to meet the different needs of the times.

Democrats have thus tended to appoint judges who believe in a "living Constitution," one responding to new concerns.

That jurisprudence, now embraced by the Democrats, has also resulted in many landmark decisions of the Supreme Court such as Brown v. Board of Education, 347 U.S. 483; Roe v. Wade, 410 U.S. 113, and Obergefell v. Hodges, 576 U.S. ___.

Those decisions, and many others like them, restricted the formerly great prerogatives of the state and local governments, upsetting the balance established by the original document.

In a very real sense, the result was the loss of self-government by the American people, as the judiciary usurped popular sovereignty and dictated basic social rules for our country.

Donald Trump perceived this, and it was his promise to appoint justices and judges who understood the judicial role as a more modest one that resulted in his support by those of us concerned about a runaway set of judges.

This week Neil Gorsuch, the first of the President’s appointments to the Supreme Court, has published a book, "A Republic, If You Can Keep It," advocating this more modest jurisprudence, essentially vindicating the president.

The Brown, Roe, and Obergefell cases and decisions were bold and unprecedented attempts to broaden individual rights, and there are impressive arguments that desegregating the public schools, permitting pregnancies to be terminated before fetal viability, and permitting same-sex partners to marry were necessary, but, with regard to abortion and marriage, at least, there were powerful counter-arguments, suggesting that the political process and not the judicial should have been allowed to resolve these issues.

Gorsuch’s book is a reminder that the upcoming 2020 presidential election is another referendum on who should appoint judges, and whether the Constitution or the judiciary should dictate how we are governed.

Once again the American people will determine whether the Constitution still exists to protect liberty, property, and self-government, or whether we return to an era of government by judiciary.

There are other matters we ought to be discussing in 2020, including trade policy and our relationships with China, the European Union, Russia, and North Korea, the war in Afghanistan, the future of freedom in Hong Kong, and whether we ought to permit the already massive federal leviathan to expand further to meet the challenge of purported climate change.

At the same time Gorsuch’s book raises this important question of self-government, Democrats in the House flirt with a wholly inappropriate attempt to impeach President Trump, even though the original asserted justification for his removal — the Russia Collusion hoax — has now been completely discredited.

Our national media worries more about the use of a Sharpie by the President and his provocative use of Twitter than it does about basic threats to the first principles of our government.

In Donald Trump’s first three years a rogue element of our intelligence and law enforcement services, in cooperation with operatives from the Clinton campaign, sought to undermine the new administration.

The perpetrators of this scandal need to be brought to justice, and their pursuit and punishment ought to be an issue in the upcoming election as well.

The authors of the "Federalist" recognized the perpetual temptation in a republic to abuse power and to degenerate into the politics of personality and personal and group grievance.

Neil Gorsuch has reminded us of one path to avoid that temptation. The Justice has thereby suggested an elevation in our political discourse. The media, the Democrats, and the President should rise to the challenge.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.

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StephenBPresser
The authors of the "Federalist" recognized the perpetual temptation in a republic to abuse power and to degenerate into the politics of personality and personal and group grievance.
gorsuch, federalist
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2019-54-09
Monday, 09 September 2019 02:54 PM
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