Undemocratic Courts

The top courts of our States and Federal Government are not democratic institutions and were created as a check on the whim, capriciousness, and mischief of democracy. Supreme courts, be it federal or state, rule on the constitutionality of the laws created by the legislatures and signed by the executive. However, the position of these courts was intended to be the weakest of the three branches. The history of the federal Supreme Courtís housing is an excellent example of its intended standing within the system. It took 175 years for it to find a permanent home.

The power of the courts was limited to only interpreting the laws created by the legislatures both federal and state, including the Constitution. In reading the Federalist Papers that explicitly deal with the powers of the court, the framers of the constitution envisioned a very restricted role for the Judiciary. For example in Federalist 80 by Alexander Hamilton, the Supreme Court is described in very limited terms. Unlike the other branches whose power is described in both what they can and can not do, the Court is described with a laundry list of what it can do. The distinction between these prohibitions and licenses is important because delineating what you can not do, as a prohibition, leaves everything else possible. While giving license, only allows you to work within that license.

What was intended by the Founding Fathers to be a reticent court, which only raised its voice in definite prescribed situations, has become an institution whose power has been elevated equal to that of the other branches of government. Regardless of the issue: Reproductive rights, pornography and marriage rights, the Court has become as important as the other branches of government in determining the manner of society which we live in. The substance of these matters is materially irrelevant compared to the fundamental change they represent in relation to the political power of the court. The highest court was intended to be apolitical, and outside the factious nature of politics, but not at the expense of the will of the people. This is demonstrated by the fact that Congress was given the power to create the lower federal court system. This hypothetically could have allowed federal judges to be popularly elected, if congress chose that route.

The Court, on a state and federal level, has shifted from one that deferred to the other the branches on issues existing on the fringes, to one that is for lack of a better term, is activist. For better or worse the Court used to allow for a clear consensus or majority to form before making controversial decisions. The court has both allowed and outlawed segregation, largely because of how the people felt about the issue. The difference between Plessey v Ferguson and Brown v Education, is a cultural shift, Civil Rights movement showed the country the injustices of segregation had to end. Today that ruling is considered just from all sides. In a less dramatic case, the court reversed itself in the period of 10 years on the exclusionary rule (which makes evidence not properly found automatically excluded) because during the first ruling few states had accepted the exclusionary rule, then a few years later, a majority of states had adopted the exclusionary rule.

The decisions regarding reproductive rights, pornography (specifically virtual child porn) and marriage rights show the shift from deferring to activist. This shift is plainly undemocratic. In each of these lines of rulings the court has refused to allow for a significant consensus to build in our country. When Roe v Wade was handed down, 2 states had legalized abortion, overnight the court made that number 50. Part of the reason that the country is still divided on this issue is that a significant amount of people have never been allowed to decide on it, ultimately weakening the decision and sparking the opposition.

This country was founded on the premise that good people can disagree; the courts have stopped allowing people to have a conversation. The victories that these interest groups achieve though the court system are only partial victories. Instead of choosing to change the hearts and minds of the people of this country through conversation, they have chosen to side step them and oblige their point of view through the courts. It is possible that the courts do not want to have to reverse themselves at a later date, but is it not a greater evil to impede the democratic process?

Is it the place of the courts to step in so early in the process? For example could the Massachusetts Supreme court have waited and deferred to the legislature? The impatience and lack of confidence that the court has with regard to the people who pay their salaries, is displayed by these recent rulings. What I hear from the people of Massachusetts is not a chorus for or against gay marriage, but a frustration of not having a vote in the kind of society they want to live in.

Posted by Miguel at February 15, 2004 12:43 AM