Republicanism (small r) under attack --Last Chance Democracy Cafe

[Demeter]

http://www.lastchancedemocracycafe.com/?p=627


"(LA Times) Call of the West: Rein In the Judges

DENVER — Judges across several Western states could soon face new limits on their authority and threats to their independence, as conservatives campaign for ballot measures that aim to rein in what they describe as “runaway courts.”

Frustration among the right has been building for years, especially since the high court in Massachusetts legalized same-sex marriage in 2003. Politicians and pastors have accused judges of ignoring the public will and legislating from the bench.

On Nov. 7, voters will be asked to do something about it.

South Dakota’s ballot contains the most radical provision: It would empower citizens to sue judges over their rulings.

Other proposals would make Colorado the first state to impose term limits on top judges and give Montana residents the right to recall judges over any “dissatisfaction.” In Oregon, an amendment would require Supreme and Appeals court judges to be elected by geographic district, so they reflect the values of conservative rural communities as well as the liberal legal establishment in Portland."


The stock response to proposals like these is to bemoan the way they would undercut judicial independence, which, of course, they would. But to use a description as vanilla as judicial independence in the face of something this revolutionary is like saying “bam” to describe a nuclear detonation.

We are talking here about nothing less than a concerted effort to end our republican form of government. True republicanism, after all, protects individual liberties and minority rights even if that sometimes means thwarting the will of the majority. By effectively ending the judiciary’s role as a check on majority excess, however, these ballot initiatives would take us in a radically different direction — toward a philosophy of governance based upon pure majoritarianism.

Any judge returning an unpopular decision would be at great risk of getting whacked under these proposals. And it’s no great stretch to say that in such a system unpopular decisions would become rare indeed.


This is, of course, precisely the sort of thing John Madison (some say Alexander Hamilton) warned against in The Federalist Papers, No. 51:

"It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.{the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure."

Now, in fairness, these state ballot initiatives, even if adopted, would apply solely to state courts, with the federal courts still open for business. But there are good reasons not to take too much solace from this: For one thing, after almost 40 years of predominately Republican appointments, the federal judiciary has become far less receptive to claims based upon individual and minority rights than was once true; state courts have often stepped up to fill the gap.

The loss of aggressive state court protection for constitutional liberties would be a stinging blow to the cause of American freedom.

And in any case, the assault on an independent judiciary is being waged against the federal as well as the state court systems, just in different ways. Make no mistake: The radical right won’t be satisfied until all courthouse doors are closed to those working to block their efforts to turn this nation into a pre-Enlightenment style theocracy.

And God help us if they succeed.