Article III, Section I

Andy, thanks for your clear-headed exposition on the proper relationship among the three branches of government, and in particular on the limits of the courts’s authority. Just to refresh everyone’s memory, here’s the Constitution on the subject:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

“May from time to time ordain and establish” seem to this non-lawyer to be the operative words here. In other words, except for the Supreme Court, the rest of the system is left to the people via their elected representatives. And that business about “from time to time” clearly indicates the Congress can revisit its handiwork whenever it so chooses. 

But a pusillanimous Congress has over the years been so brow-beaten by the Left’s constant harping on the supremacy of “judicial review” — born, of course, of its reliance on the courts to get its legislative agenda turned into law, which for the most part it could not and cannot do at the ballot box — that the plain language of Section 1 seems to elude the capons — oops., I mean the solons. As you say:

If we really want judges to limit themselves to applying law, rather than making it, we need to demand that the real lawmaking be done by the political actors we hired for the job. . . . 

. . . for the last half-century, the Court has regarded itself as a permanent constitutional convention. This is the absurdity: The Constitution says it cannot be amended absent an elaborate process involving supermajorities of Congress and the states — but the courts have somehow convinced us that a 5–4 shakeout from nine unelected lawyers can do the trick.

In other words, since about the Warren Court, we’ve gone from the courts as the last and least of the three governmental branches (“the least dangerous,” in Hamilton’s words), to the romantic champions of the Little Guy, to (in your examples concerning the Detainee Treatment Act) the lords and masters of Congress itself. As you note:

The courts have not merely been an advocate for our wartime enemies but a partisan in the culture wars — inventing abortion rights; eroding the bedrock principle of equal protection before the law; cossetting heinous criminals; banning public expressions of religious reverence; protecting the publication of child pornography while curbing political speech; cherry-picking international law as needed to reverse popular self-determination; and so on.

If the Founders had wanted the courts — instead of the People — to be supreme, they would have made them Article One instead of Article Three. And they wouldn’t have left their establishment up to something as plebeian and untrustworthy as republican democracy.

As usual, Gingrich took a bull-in-a-china-shop approach to raising an extremely important issue — but at least now it’s on the table. Let’s see if any of the candidates and leaders on the Right besides Mr. Newt have the guts to address it. Probably not.

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