Because I Said So

(Another in an ongoing – irregular – series on proposed Constitutional changes.

This particular schema will be continued – and I hope concluded – next week.)

There are times when the children just won't do what you want. The gurus currently in vogue tell us that the proper way to deal with them is to explain what you want, and why that is the best method for dealing with the situation at hand. Speak to them rather than taking any physical action. Treat them like adults.

But they're children.

Expecting them to respond to (adult) logic is unrealistic. However carefully you may have considered whatever you're asking of the child, he has a mind of his own. He knows what he wants and an explanation of why the choice is the wrong one may be very nice in a psychological essay, but it often doesn't work where “the rubber hits the road.” And where the child hits his sibling. “This hurts me more than it does you,” is one of the popular phrases heard at this time, accompanying what may be an appropriate corporal responseⁱ but it would be better to avoid the need for it.

So the answer to the invariable “Why?” when the logic proves fruitless is “Because I said so.” After all, you know better than the whining child. At least I assume you know better. But I'm not sure that's always the case. There are times when we all use that line because we lack a logical reason for what we want, but are sure we know best. Whoever argues with us simply isn't as smart as we are.

Which brings me to “judicial activism.”

There are times when it seems that the courts – especially the Supreme Court – take the same approach to what they view as a problem; when Justices expound on their own views and call them law. Judicial review dates back at least to the seventeenth centuryⁱⁱ and was known in the colonies and the United States to be a valid concept before it became a formal part of law in Marbury v Madison in 1803. That case established the authority of the Supreme Court to decide the constitutionality of laws passed by Congress. As Chief Justice Marshall said, “It is emphatically the province and duty of the judicial department to say what the law is.” It was a statement free of irony. Marshall viewed it as a matter of fact. It was what the Founding Fathers had decreed.

And there was, and is, no appeal. Indeed, unchallenged, lower courts can also make a determination of what is permissible under United States law or, it sometimes is claimed, in line with their own value systems. “Aye, there's the rub.” There are times it seems that the law is the law “because I said so.” And once established, the new concept – whether based on law or the confident extralegal views of the courts' decisions – is precedent and, though challenge may be made, it becomes more difficultⁱⁱⁱ to change.^iv

How does this come about? While the vast majority of legal decisions in no way deal with society's value systems, a few do. Who makes the decisions, and is there any way to change them? Is it justified for any group to have “the final say” over what others meant, or may have meant when framing legislation?

I'll try to deal with alternatives to the current system next week, but for now a statement of that system is in order. While there are variations in the choice of local and state judges, in the Federal system judges, including Supreme Court Justices, are appointed rather than elected. One of the major considerations in a presidential election – and politicians forcefully promote this consideration – is that the complexion of the Court will be governed by executive appointments: interpretation of the law will be in the hands of those who hold views comparable to those of the President. The “separation of powers,” and the system of “checks and balances” notwithstanding, the interpretation of law will be in the hands of those whose views are acceptable to the Chief Executive – for it is he who will appoint the justices.

The Constitution does provide for the Senate to “advise” the President and to “consent” to his appointments, and this power cannot be minimized. Congress, moreover, does have the power to impeach Federal judges.^v But, in respect to the outlook of the Court, there would not be so great an emphasis on the importance of presidential appointments if, in the end, the President did not have a major impact on that outlook. The appointment of an individual, with a lifetime position, allows the promulgation of particular views long after the individual who made that appointment has left office. And, with our Electoral College system,^vi that Chief Executive may not even have the support of the majority, as has happened on several occasions in the past.^vii

Is there any hope? Is change necessary? Is it appropriate? I think the answer is “yes” and I'll make some suggestions next week. And with those changes, our laws will have the meaning we consider right because we say so.

Next episode: “Judge For Yourself” – Conclusion of recommendations for improvement of the Judiciary.

i     I'm sure that I'll be faulted for my belief that there are times when physical punishment should not only be tolerated, but is the best response to a problem.

ii    Thomas Bonham v College of Physicians, 8 Co. Rep. 114, 1610. Citation in Wikipedia.

iii    Though certainly not impossible.

iv    The eleventh amendment to the Constitution, in 1795, was specifically enacted to overturn a Supreme Court decision (Chisholm v. Georgia, 2 U.S [2 Dall.] 419, 1 L.Ed. 440) which had been rendered in 1793. Although this took place before Marbury v Madison, it demonstrated both the acknowledgment of the Court's power to overrule a State court and an approved method for change: for remedying the perceived problem.

v     But Congress can only react to those nominated by the Executive branch. They cannot initiate the process. So however many times they reject a presidential appointment, they will only have another such nomination before them, and they can only impeach based on violations of the law, not on the basis of different interpretations of the law's meaning.

vi    A system that should probably be rethought.

vii    If there are more than two candidates for President, a minority choice is possible even if we follow the popular vote. Although a very significant portion of our citizens don't vote – and this, too, means that whoever is elected will only represent a minority – I have no sympathy for those who opt out of the system.