Insert disclaimer here. WARNING: Political discussion
follows. These are my own views.
It can be argued that taking any GoodThing, to an extreme,
can transform it into a BadThing. For example, in the tension
between states and federal rights, finding the appropriate
balance may shift from time to time. But our republic, and
the freedom we enjoy, depends on finding an acceptable
balance, rather than going to either extreme.
Our Founding Fathers wisely created a national government
in tension with its states. In concept, this is much the same
as the three separate, but equal branches of government. Each
would have its individual powers that the others would not,
under the grand experiment that by doing so, each would check
and balance the others so that tyranny would not reign over
our land.
This balance is, in some cases, a dynamic one. In other
cases, we may have established certain areas where one takes
dominance over the other. But Madison, writing in
The
Federalist No. 45 said "Several important considerations have been touched in
the course of these papers, which discountenance the
supposition that the operation of the federal government will
by degrees prove fatal to the State governments. The more I
revolve the subject, the more fully I am persuaded that the
balance is much more likely to be disturbed by the
preponderancy of the last than of the first scale."
In The
Federalist No. 46, Madison goes on to say
The federal and State governments are in fact but
different agents and trustees of the people, constituted
with different powers, and designed for different purposes.
The adversaries of the Constitution seem to have lost sight
of the people altogether in their reasonings on this
subject; and to have viewed these different establishments,
not only as mutual rivals and enemies, but as uncontrolled
by any common superior in their efforts to usurp the
authorities of each other. These gentlemen must here be
reminded of their error. They must be told that the
ultimate authority, wherever the derivative may be found,
resides in the people alone, and that it will not depend
merely on the comparative ambition or address of the
different governments, whether either, or which of them,
will be able to enlarge its sphere of jurisdiction at the
expense of the other. Truth, no less than decency, requires
that the event in every case should be supposed to depend
on the sentiments and sanction of their common
constituents.
Much has changed since these words were in written in
1788. But the central truth remains the same, we are one
nation.
It may now seem quaint, but at one time states printed
their own currency. While this certainly decentralized
currency powers, it also acted as barrier to internal and
external trade (few companies or countries would wish to deal
with 50 different currencies when it could deal with
one).
Secondly, at one time, the individual states were
responsible for their own security. By that I mean there
wasn't a federal army, navy, or air force. Clearly, this
presented a very weak front to any large power that wished to
pick off individual states, one at a time. Eventually, the
common defense required the creation of a central command and
structure. However, to this day, not wanting to cede all
military powers to the federal government, states continue to
fund their own local militias.
Yet, we are one nation.
With this background, there is a recent essay in the
Weekly Standard entitled
"Back to Federalism" by David Gelernter.
I'm afraid I'm not familiar with the publication nor the
author. No doubt, this is because I'm just a poor, unwashed
country boy from Palolo Valley and surely I don't have the
education that Mr. Gelernter has. So, what few cogent
thoughts I can string together will, probably, not rise to
his level. That said, I will try, anyway.
The essay begins by referring to an earlier article by
James Q. Wilson in which, apparently, Wilson maintains, as
Gelernter puts it, that our country is "polarized to an
unprecedented extent; bitterly divided". Gelernter goes on to
say that conservatives must "confront this problem and show
the country how to solve it. Not to solve it is to invite
catastrophe."
I think most polls indicate that on some, but not all
issues, our country is divided. But to say there would be catastrophic results if
we don't, somehow, change this is, in my opinion, at least
over reaching.
Why? Because we are not divided on all issues. In fact, I
would guess, there are but a few in which there is such
polarization and for those, it is unclear why something must
immediately be done or catastrophe will surely befall us.
Yes, the far left and the far right have done their best,
for its own reasons, to frame differences as polar opposites
- with no room for compromise. But that doesn't mean the
majority has to blindly follow either side over a cliff of
doom. Common ground can and should be found. Extremism, on
either side, does not serve the country well and
is, in my opinion, leading to catastrophe.
But even if we accept that polarization is a problem that
must immediately be solved, and forget that extremists are
the ones creating, aiding, and abetting such polarization,
what are his solutions?
Gelernter puts forth two proposals to limit the
constitutional powers of the courts: "a constitutional
amendment, and congressional legislation limiting the federal
courts' jurisdiction."
In explaining his choice of solutions, Gelernter seems to
backhandedly acknowledge that getting a constitutional
amendment passed would take a long time and perhaps, and I'm
speculating here, reflecting a world view of the general
public that tends to hold the middle ground that is counter
to his ultra conservative views, could fail.
So, I presume, since the author apparently feels that not
only is polarization a problem, but that time is of the
essence, he focuses on his second solution.
The essay takes the Judiciary to task and says it (the
federal courts, in general and the Supreme Court, in
particular) is the source of what the author terms "the
collapse of federalism." The author goes on to say that the
"collapse gathered momentum with the Supreme Court's 1973
decision in Roe v. Wade, which legalized abortion..."
It is curious how some conservatives keep bringing
Roe v. Wade back. Its been over 30 years. I realize, to this day, that
there are those who sympathize with the South in the war
between the States but the majority have long since moved on.
Why can't these anti-abortion people do the same?
Then the author drops this line: "And of course it's true
that, when unelected judges override elected legislatures,
democracy loses." This appears to be an aside, so perhaps the
author did not give the statement sufficient thought before
committing it to paper. I know I've done the same more than
once and lived to regret it. Or, perhaps I misunderstand what
he is saying.
But he seems to be saying one of two things: either judges
should be elected or the judiciary is not part of the
Constitutionally mandated democratic process of checks and
balances. I doubt he is referring to the electing of judges,
since in some jurisdictions, some judges are elected. But
maybe I'm wrong. Perhaps he is calling for the election of
federal judges. As to his second point, I will not reiterate
what he surely knows the Constitution says about the
judiciary and its place among the three branches of
government.
However, rather than usurping the powers of the states or
other branches of federal government, I note that the very
Federalist Papers that he quotes in his essay, to the
contrary say in Federalist
No. 78, written by Hamilton, the following:
Whoever attentively considers the different departments
of power must perceive, that, in a government in which they
are separated from each other, the judiciary, from the
nature of its functions, will always be the least dangerous
to the political rights of the Constitution; because it
will be least in a capacity to annoy or injure them. The
Executive not only dispenses the honors, but holds the
sword of the community. The legislature not only commands
the purse, but prescribes the rules by which the duties and
rights of every citizen are to be regulated. The judiciary,
on the contrary, has no influence over either the sword or
the purse; no direction either of the strength or of the
wealth of the society; and can take no active resolution
whatever. It may truly be said to have neither FORCE nor
WILL, but merely judgment; and must ultimately depend upon
the aid of the executive arm even for the efficacy of its
judgments.
Hamilton further writes:
The complete independence of the courts of justice is
peculiarly essential in a limited Constitution. By a
limited Constitution, I understand one which contains
certain specified exceptions to the legislative authority;
such, for instance, as that it shall pass no bills of
attainder, no
ex post facto
laws, and the like. Limitations of this kind can be
preserved in practice no other way than through the medium
of courts of justice, whose duty it must be to declare all
acts contrary to the manifest tenor of the Constitution
void.
Without this, all the reservations of particular
rights or privileges would amount to nothing.
[Emphasis added.]
Rather than the pointing to the judiciary as the source of
their problems, extremists should look in the mirror
and realize that they are the source error. Rather, these
extremists should come to understand that democracy
depends on a judiciary that is independent from the other branches
of government. Rather, these extremists must come to
accept that democracy depends on this delicate balance and to
ham handedly upset this balance invites or even incites
catastrophe down onto everyone.
In summary, the case, in my mind, is not made that a clear
and present danger exists. The case is not made that if there
is a present danger, that the solution is to chop down the
third branch of government.
I know of no public good that can come from instituting
Gelernter's one-sided solutions and, I would claim, that to
do so could bring about the very dissolution of democracy
that he is saying he wishes to protect.
Aloha!
My wallpaper for the week comes courtesy of the Hubble Space
Telescope. The image is described as the sharpest ever taken
of the Orion Nebula. According to the 
It what is described as the only one of its kind, the State
of Hawai'i honored its Iraq, Afghaniostan, and Kuwait war
dead with
Ancient Hawaiians did not have a written language. Hence, in
order to pass down the knowledge of the elders, chants (mele) or dances (hula) were developed, memorized, and regularly performed.
Cmdr. Stephen Hussey of the Royal Australian Navy, right,
Lt. Col. Layton Sutton of the Australian Army and Wing Cmdr.
Steve Kennedy of the Royal Australian Air Force.
Photo:RICHARD WALKER