Destroying the American Republic
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 wouldnt 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 doesnt 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 hasnt been the case for two centuries. On the rare occasions when a judge is impeached, its 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 arent 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.
But though members of Congress are sworn to defend the Constitution, they wont 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 theyd passed. Checks and balances dont protect state legislatures against Federal judges. And as long as those judges are secure in the knowledge that the states cant do anything about them, and Congress wont, 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. Theyve 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 Courts 1857 Dred Scott ruling a judicial threat to self-government. Yet it was Lincolns 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.
Its no use repeating empty slogans about checks and balances and judicial restraint. Theyre 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 theyve 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.
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