Courts Lining Up Politically Should Alarm Us

A recent New York Times Magazine article raises an interesting question:

"In Israel, the United States and other democracies, bitter battles are being waged over the same question: How much power should courts have to overturn the will of the people."

Of course it is doubtful whether enactments of democratic legislatures literally express the "will of the people." President Lincoln's famous reference to "government of the people, by the people, and for the people" does not describe the essence of regimes we consider democratic.

A more accurate description is "government by some people, limited by the people through free competitive elections."

So to rephrase the New York Times' question: How much power should courts have to overturn enactments of democratically accountable legislatures?

In the United States federal courts purport to overturn such statutes for two possible reasons.

The first is if the statute violates a specific constitutional prohibition. Imagine that Congress enacts a statute declaring that John Jones shall be executed. Since the Constitution prohibits bills of attainder (legislative convictions), the courts would strike down the statute because it violates a specific constitutional no-no.

The second reason for striking down a law is that the Constitution does not authorize Congress to enact it, so that it has acted ultra vires — beyond its powers.

Obamacare was challenged in lawsuits contending that Congress had acted ultra vires because the Constitution did not give it power to enact such a law. Although the Supreme Court rejected this challenge, it had to go through complicated logical gyrations to uphold the law, gyrations which in turn were seized upon by Obamacare opponents to mount further challenges — likewise unsuccessful.

I believe that overturning acts of Congress on grounds they are not authorized by the Constitution does not, in general, make sense. However it does makes sense when Congress enacts pseudolaws — rules enforced by sanctions but not applying to the entire population.

Major historical examples of pseudolaws include "minorities must ride in the back of the bus," "Jews must wear a yellow star," "women can't work as a bartender unless the bar is owned by her husband or father."

Pseudolaws classify people before they have even acted, and apply only to those in the disfavored class. It is therefore reasonable to assume that when the Constitution authorizes Congress to enact laws, it does not also authorize it to enact pseudolaws.

But when courts consider overturning genuine laws, like Obamacare, because they were not pursuing goals specifically authorized by the Constitution, this is going too far. The presumption should be that enactments by a Congress accountable to the electorate are constitutionally valid as long as they are genuine laws and do not violate the Constitution's specific prohibitions.

There is too much wiggle room in the language and historical interpretations of the Constitution to allow courts, when they feel like doing so, to strike down genuine laws for lack of constitutional authorization. When they do this, they are really deciding cases on the grounds that they think the legislation is bad public policy.

When courts decide cases on the grounds that the legislation is good or bad public policy, they are usurping the powers of democratically accountable legislators. The responsibility of legislators is to make tradeoffs and weigh conflicting considerations with an eye on how their decisions will go over with voters in the next elections.

In the U.S. federal judges do not face re-election since they serve, in effect, for life.

The recent politicization of courts and partisan conflict over appointments to those courts is a strong indication that these courts are abusing their powers, pretending to be interpreting the Constitution and acts of Congress when in fact they are engaged in legislating.

Recent decisions by the U.S. Supreme Court where the justices line up politically with the party of the president who appointed them thus are a danger sign that we cannot ignore.