Destroying the American Republic

July 5, 2005

How can the U.S. Supreme Court be brought under control? This is a question that

Today's column is "Destroying the American Republic" -- Read Joe's columns the day he writes them.

has vexed conservatives since the era of Earl Warren, chief justice from 1953 to 1968, when the Court became more aggressive — or “activist” — than ever before.

Under Article III, Section 2 of the Constitution, Congress may limit the appellate jurisdiction of the Court as it pleases (on abortion, for instance); but this wouldn’t reverse bad decisions the Court has already made. No matter how broadly drafted, such limits would leave standing countless previous abuses of judicial power.

Besides, Congress doesn’t have the will to do it, which would require a unity impossible to secure as long as many members of both parties are content to see the Court continue usurping powers, especially powers that once belonged to the states. Nearly all laws the Court strikes down are state and local laws, not Federal ones.

If Congress really wanted to get tough, it could start impeaching judges. This happens so rarely that impeachment is now widely felt to be an extreme measure, a kind of cruel and unusual punishment.

But impeachment for abuse of office should be a fairly common procedure in a republic. Officeholders should always be kept keenly aware that they exceed their powers at their own risk. A judge or justice who usurps power from the legislative branch, state or Federal, ought to face the prospect of removal.

Unfortunately, this hasn’t been the case for two centuries. On the rare occasions when a judge is impeached, it’s always for some personal criminal act, like tax evasion, not for anything he does on the job. So the judiciary now enjoys almost absolute job security, no matter how outrageously it performs. Unelected, it can do things nobody who faced the voters would dare to do.

In other words, Congress has tacitly decided that judicial violations of the Constitution aren’t “high crimes and misdemeanors,” the standard of impeachable offenses. And when you come right down to it, Congress can define “high crimes and misdemeanors” any way it pleases.

[Breaker quote for Destroying the American Republic: The invisible tragedy]

[Breaker quote for Destroying the American Republic: The invisible tragedy]

But though members of Congress are sworn to defend the Constitution, they won’t defend it against the Supreme Court. And even if they did, state legislatures would remain helpless against the Federal judiciary when it struck down laws they’d passed. “Checks and balances” don’t protect state legislatures against Federal judges. And as long as those judges are secure in the knowledge that the states can’t do anything about them, and Congress won’t, they will go on declaring state (and local) laws unconstitutional at their whim.

Ultimately, this uncontrolled judicial power is a structural problem. The states long ago lost their final means of self-defense: secession. While they were still the “free and independent states” the Declaration of Independence declared them to be, they could exercise their sovereignty by withdrawing from the Union, if they decided there was no other way left to them.

Like the real possibility of impeachment, the real possibility of secession would deter the courts from overstepping their bounds. But this is no longer feasible. The states are locked into the Union now, with no exit. They’ve lost the “sovereignty, freedom, and independence” they were guaranteed by the Articles of Confederation — which, we are assured, the Constitution improved on!

Ironically, it was Abraham Lincoln who saw in the Supreme Court’s 1857 Dred Scott ruling a judicial threat to self-government. Yet it was Lincoln’s own Civil War — actually a war against state sovereignty — that ultimately left the American people at the mercy of the Federal Government, including the Federal judiciary.

It’s no use repeating empty slogans about “checks and balances” and “judicial restraint.” They’re as worthless as Confederate money, or worse, lacking even antique value.

We may as well face it: the American Republic whose birth we celebrate every July 4 has ceased to exist. It succumbed long ago to what Garet Garrett used to call “revolution within the form.” The names of the old things have been preserved, but their meanings have entirely changed.

Few Americans today either understand or appreciate the old system they’ve lost. Even those who overturned it hardly knew what they were doing. The process of destruction still goes by the names of “reform” and “progress.”

Joseph Sobran

Copyright © 2005 by the Griffin Internet Syndicate,
a division of Griffin Communications
This column may not be reprinted in print or
Internet publications without express permission
of Griffin Internet Syndicate
small Griffin logo

Send this article to a friend.

Archive Table of Contents

Current Column

Return to the SOBRAN’S home page.