The US
is gradually losing the rule of law, from the top to the bottom. In the courts,
the Constitution expected judges to rule on what the law is, whether they liked
it or not. We have come to the point where judges in important cases rule
according to what they would like the law to be. This is the Humpty Dumpty
school of law, where the Constitution means whatever 5 Supreme Court Justices
say it means, and neither more nor less. The gay marriage ruling is a classic
example of this attitude. I think the justices should have ruled that a
marriage legally performed in one state had to be recognized in all states. It
would have been a ruling consistent with previous rulings. Like the ruling
overturning DOMA, it would have been a ruling that left the power to the
states. Ruling that way would have settled the matter without leaving any loose
ends for future advocates to use to expand future "rights." Instead
the court stretched the 14th Amendment to cover gay marriage. This stretch was
ridiculous. In 1868 when the 14th Amendment was ratified, homosexual acts were
illegal in every state. But the effect of stretching this far is pervasive fear
about how far any wacky group of 5 Supreme Court might go in some future case.
If you
are comfortable with the Supreme Court acting in arbitrary fashion, think about
how you would feel about a 5 to 4 vote that went the wrong way from your point
of view. Given the way Roe v Wade was decided, nothing prevents a future
Supreme Court from reversing the ruling totally. There's no Constitutional
Amendment and no legislative process in place to backstop the ruling. Another
group of justices can rule 5 to 4 that life begins at conception and all
abortions are henceforth illegal, and all state laws to the contrary are
overturned. I would not want this outcome. But the way Roe v Wade was decided,
there is nothing to stop it from happening. I think this hypothetical is
definitely possible. So do the supporters of the Roe v Wade outcome, who panic
every time there's another vacancy on the Supreme Court for exactly that
reason.
In the
regulatory agencies, we have gradually moved to a concentration of power that
was not supposed to happen under the Constitution. Regulatory agencies combine
executive, legislative and judicial function all in a one stop shop. They make
the rules, a legislative function. They decide where to send investigators, an
executive function. And finally they hear the cases with their own
administrative judges, a judicial function. They get away with all of this because
the courts defer to regulatory agencies' expertise. If you sue a regulatory
agency, the deck is heavily stacked against you. Under Obama, they no
longer bother to follow the law authorizing their existence and purpose.
They do whatever the president wants.
At the
presidential level, the Smartest President Ever is ruling by decree using his
pen and phone. He unilaterally decided not to collect taxes on employers
mandated by Obamacare, which in most contexts is "settled law." He
has granted visas to illegal aliens, contrary to law. If I listed all of the
ways Barry the Brilliant has flouted the law, it would take me until tomorrow
at 6 AM to get through all of them.
If we do elect a Republican president in 2016, it will be
interesting to see the left's reaction to a Republican Executive Branch using a
pen and phone approach to canceling Obama's pen and phone decrees. I
imagine pen and phone activity on the right will become a gross abuse of
Constitutional process. The rules change depending on who's in
office. Under the rule of law, everybody has to obey the same law, no
matter who they are or what political alignment they have. It’s just another indication that the
rule of law is disappearing.
The
Supreme Court needs a check on it. I think that if the legislatures of a
majority of states vote to "ratify" a minority opinion that disagreed
with the majority opinion in a Supreme Court case within 2 years of the
decision, then the minority opinion should come into force as if it were the majority
opinion. This has several benefits. For one thing, the Justices would be
encouraged to moderate reasoning to justify decisions and prevent dissents
which would attract support in the states. For another, unlike term limits or
other removal from office mechanisms, this goes to the heart of the problem. It
changes the offending decision itself. There are plenty of judges who would be
glad to be removed from office if their decision would stay in force.
The
regulatory agencies need to be reined in. The best way to do that would be to
force Congress to vote to ratify all regulations before they go into effect.
Since the agencies are executive branch, the President's position would be that
he was proposing the regulations for Congress to ratify. Congress could refuse
to ratify any part of the proposed regulations as well as rejecting the whole
package. Just to put some extra teeth into it, all regulations and laws should
have an expiration date of 50 years or less. This is another Constitutional
Amendment with no chance in Congress or on almost any conceivable President's
desk.
All regulatory administrative proceedings need to be subject to strict judicial
review. Deference to regulatory findings should be ended by statute.
Special knowledge lower courts should be established by Congress as the
initial courts of appeal for each regulatory agency. The judges in these
courts would not necessarily have to be lawyers, but they would have to be
knowledgeable on the area of regulation they were hearing appeals for.
Rulings in regulatory agency enforcement hearings should not take effect
if appealed by the regulated party until a court ruling sustains them.
All of these changes could be enacted by Congress without any
Constitutional change.
Given recent Democrats’ willingness to vote whichever
way President Obama or Harry Reid tells them to, I don’t expect any amendment
that changed the Washington power structure would have a chance of getting
passed in Congress. I think we are going to have to go with a
Constitutional Convention called by the states.
Many,
even most of you, are concerned about the risks of a Constitutional Convention.
You have to remember that the
Constitution we have now means whatever 5 Supreme Justices say it means. Anything
a Constitutional Convention drafts would have to be ratified by 38 states.
While Congress has shown a number of times that it will vote for 1,000 pages of
mumbo jumbo, I think the legislatures of 38 states are likely to have better
sense.
The loss of the rule of law is, to reuse Biden's
phrase, a BFD. I think we need a Constitutional Convention called by the states
to fix it. I think enough folks in Flyover country are tired of the
generally lawless behavior at the federal level that we are reaching a tipping
point. If no reasonable amendments can get through Congress, the states will
call a Constitutional Convention under Article V. Harry Reid ain't the only
politician with a nuclear option. If the Supreme Court tries to stop a
Constitutional Convention, liberals will finally find out the real reason the
Second Amendment is in the Bill of Rights.
