God Save This Honorable Court
My local PBS affiliate produces every Friday evening a pair of programs on state politics. One features members of the state legislature, sort of Charlie Rose-style; the other features various journalists who cover state politics, sort of Washington Week in Review-style. I've gotten rather addicted to them despite myself. Partly, that's because I'm watching PBS every Friday at that time, anyway, to catch The NewsHour and WWIR. Partly, though, it's because I'm pleasantly surprised at the quality of the discussion on them.
Don't get me wrong. Nobody is going to confuse my state legislature with, oh, say, the Virginia state legislature of the 1770s and 1780s. We've got no Madisons or Jeffersons or George Masons. We don't even have a Patrick Henry (who, let's face it, was a much better talker than he was a thinker). Some of these people couldn't form a complete, grammatical sentence if you put a noun in their left hand and an intransitive verb in their right. Honestly, if you took the entire House and Senate together, I'm not even sure how many college degrees you'd find. This is a state, after all, with an astronomical school/college dropout rate, and where the number one reason students give for dropping out is "truck payment." Schools, in fact, are THE hot topic of conversation on the two local PBS shows, and in state political circles in general, these days.
A while back, you see, the state supreme court informed the legislature that the way they were funding the state's school system was in violation of the state constitution. The school system is one of the largest budgetary items in the state, and it is just about the hottest of all hot button issues in every little town and rural school district throughout the state. So what would you expect when the legislature is forced to completely rewrite the rules on school funding? Rancor. Pissing matches. Unadulterated partisanship. Interminable bickering. Blood in the streets.
Oddly enough, we've really had very little of that. Why? Mostly it's because there just isn't time for it. The legislature HAS to get this job accomplished, and they HAVE to have it done by a certain date. Why? Because the state supreme court said so, that's why. Given more time to deal with the issue, every third member of the legislature would offer a separate plan, each of those plans would just happen to favor schools that just happened to look like the schools in that legislator's district, everyone would assume rigid, ideological positions, go into siege mode, accuse everyone else of sculduggery, and the whole debate would break up into partisan squabbling and, well, pissing matches. Nothing would get done, and the school funding system would be a shambles. (Which, by the way, is pretty much how we ended up in our current predicament.)
Sound familiar? Maybe like a certain national legislative body? And why is it, again, that my state legislature isn't acting like that right now? Because the state supreme court didn't give them that option.
Ain't courts grand?
You wouldn't know it if you listened to the rhetoric of the right, though. The courts are taking a hellatious beating from the right these days. It seems they can't get anything right -- er, correct. If they rule on an issue, they're circumventing the democratic process (pick a social issue, any social issue). If they decline to rule on an issue, they're abdicating their duty to provide due process (think Terri Schiavo). If they decide a civil suit, the monetary punishment is too severe. If they decide a criminal case, the punishment is not severe enough.
It seems like a large chunk of the American population has forgotten what our courts are for. Yes, they're there to process civil and criminal lawsuits. But they're also there to be a bulwark against democracy. That's right: the courts are supposed to circumvent the democratic process sometimes. That seems counterintuitive because democracy is so central to all things American. But the fact is, America is not and has never been a pure democracy. Ours is a constitutional democracy.
That means there are some things in America that majorities cannot do. Period. (Unless they're large enough and committed enough to amend the Constitution, which 99% of the time they aren't.) They cannot change the basic rules by which we've all agreed to govern ourselves, the things we've written into our Constitution. There's no referendum, for instance, by which a simple majority can obliterate the Senate. That just isn't something the majority gets to do. Similarly, the government can't deny the right to assemble to a certain group of Americans just because a majority of the country favors it. That just isn't something the majority gets to do. It's unconstitutional. Another word for "unconstitutional" is "illegal."
One of the roles of the courts is to whack the rest of us upside the head when we (the simple majority, or what the Framers tended to accurately call "the overbearing majority") do something that violates the basic rules -- that is, when we try to decide something that just isn't up to us to decide. We don't always like it. In fact, we pretty much never like it. "Hey," we shout, "what that group over there is doing is wrong, we don't like it, and we're the majority, so we don't have to put up with it!" And the courts reply to us, "Well, we're sorry that what those folks are doing offends and frightens you so, but they've got the same rights you've got and you don't get to revoke those rights whenever you want to just because those folks are a small group and you're a large one. If you want to revoke their rights, you've got to change the Constitution. Them's the rules. Learn to love 'em." No bullying allowed.
Another useful thing the courts do is provide a forum for strongly held, ideologically opposed views to be heard and -- here's the neat part -- actually decided on. My state legislators don't have the luxury of partisanship or ideological fervor on the school funding issue, because the ideological fervor was hashed out and settled in the courts before the legislature ever got started on the issue. So the legislators are working together remarkably well, compromising (gasp), and, it appears, actually getting the job done. Meanwhile, in the U.S. Congress, ideologues and demagogues abound, nobody's willing to compromise, and very little is really accomplished.
To hear the right tell it, the courts are deciding too much these days. I wonder if maybe they're deciding too little.
Don't get me wrong. Nobody is going to confuse my state legislature with, oh, say, the Virginia state legislature of the 1770s and 1780s. We've got no Madisons or Jeffersons or George Masons. We don't even have a Patrick Henry (who, let's face it, was a much better talker than he was a thinker). Some of these people couldn't form a complete, grammatical sentence if you put a noun in their left hand and an intransitive verb in their right. Honestly, if you took the entire House and Senate together, I'm not even sure how many college degrees you'd find. This is a state, after all, with an astronomical school/college dropout rate, and where the number one reason students give for dropping out is "truck payment." Schools, in fact, are THE hot topic of conversation on the two local PBS shows, and in state political circles in general, these days.
A while back, you see, the state supreme court informed the legislature that the way they were funding the state's school system was in violation of the state constitution. The school system is one of the largest budgetary items in the state, and it is just about the hottest of all hot button issues in every little town and rural school district throughout the state. So what would you expect when the legislature is forced to completely rewrite the rules on school funding? Rancor. Pissing matches. Unadulterated partisanship. Interminable bickering. Blood in the streets.
Oddly enough, we've really had very little of that. Why? Mostly it's because there just isn't time for it. The legislature HAS to get this job accomplished, and they HAVE to have it done by a certain date. Why? Because the state supreme court said so, that's why. Given more time to deal with the issue, every third member of the legislature would offer a separate plan, each of those plans would just happen to favor schools that just happened to look like the schools in that legislator's district, everyone would assume rigid, ideological positions, go into siege mode, accuse everyone else of sculduggery, and the whole debate would break up into partisan squabbling and, well, pissing matches. Nothing would get done, and the school funding system would be a shambles. (Which, by the way, is pretty much how we ended up in our current predicament.)
Sound familiar? Maybe like a certain national legislative body? And why is it, again, that my state legislature isn't acting like that right now? Because the state supreme court didn't give them that option.
Ain't courts grand?
You wouldn't know it if you listened to the rhetoric of the right, though. The courts are taking a hellatious beating from the right these days. It seems they can't get anything right -- er, correct. If they rule on an issue, they're circumventing the democratic process (pick a social issue, any social issue). If they decline to rule on an issue, they're abdicating their duty to provide due process (think Terri Schiavo). If they decide a civil suit, the monetary punishment is too severe. If they decide a criminal case, the punishment is not severe enough.
It seems like a large chunk of the American population has forgotten what our courts are for. Yes, they're there to process civil and criminal lawsuits. But they're also there to be a bulwark against democracy. That's right: the courts are supposed to circumvent the democratic process sometimes. That seems counterintuitive because democracy is so central to all things American. But the fact is, America is not and has never been a pure democracy. Ours is a constitutional democracy.
That means there are some things in America that majorities cannot do. Period. (Unless they're large enough and committed enough to amend the Constitution, which 99% of the time they aren't.) They cannot change the basic rules by which we've all agreed to govern ourselves, the things we've written into our Constitution. There's no referendum, for instance, by which a simple majority can obliterate the Senate. That just isn't something the majority gets to do. Similarly, the government can't deny the right to assemble to a certain group of Americans just because a majority of the country favors it. That just isn't something the majority gets to do. It's unconstitutional. Another word for "unconstitutional" is "illegal."
One of the roles of the courts is to whack the rest of us upside the head when we (the simple majority, or what the Framers tended to accurately call "the overbearing majority") do something that violates the basic rules -- that is, when we try to decide something that just isn't up to us to decide. We don't always like it. In fact, we pretty much never like it. "Hey," we shout, "what that group over there is doing is wrong, we don't like it, and we're the majority, so we don't have to put up with it!" And the courts reply to us, "Well, we're sorry that what those folks are doing offends and frightens you so, but they've got the same rights you've got and you don't get to revoke those rights whenever you want to just because those folks are a small group and you're a large one. If you want to revoke their rights, you've got to change the Constitution. Them's the rules. Learn to love 'em." No bullying allowed.
Another useful thing the courts do is provide a forum for strongly held, ideologically opposed views to be heard and -- here's the neat part -- actually decided on. My state legislators don't have the luxury of partisanship or ideological fervor on the school funding issue, because the ideological fervor was hashed out and settled in the courts before the legislature ever got started on the issue. So the legislators are working together remarkably well, compromising (gasp), and, it appears, actually getting the job done. Meanwhile, in the U.S. Congress, ideologues and demagogues abound, nobody's willing to compromise, and very little is really accomplished.
To hear the right tell it, the courts are deciding too much these days. I wonder if maybe they're deciding too little.
posted by juvenal_urbino | 5:33 AM
2 Comments:
Thanks for the much-needed Civics lesson. It seems to me that this whole concept is a huge source of misplaced discontent.
What do you think when you hear the standard complaint when the court rules - blaming it on whose appointee it must have been (e.g. which I heard on American Family Radio's rant on the Schiavo case last week)?
I have to agree with the fact that the courts are operating exactly as designed. But then... so are the legislative and executive branches. As crazy as things sometimes get, we still have a system that is flexible and viable in the face of significant challenges to its legitimacy (2000 election results anyone?). The only place I think the Framers screwed up a little is in the 9th amendment. (For those that don't recognize it off the bat, the 9th amendment prevents states from making laws that deny rights not enumerated in the Constitution.) They left that thing so broad that a smart lawyer can make anything into a "right." Hence, we have the "right" to privacy that has given us Roe v. Wade and other controversial court decisions that many conservatives consider "legislating from the bench."
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