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Alan Keyes on Judicial Review and Executive Responsibility
Judicial review and executive responsibility
Alan Keyes, RenewAmerica.com, March 28, 2005
Despite action by Congress to create an opportunity for the federal courts to review and correct the violation of Terri Schiavo's most basic rights, the latest effort to prevent her judicially sanctioned murder by starvation appears to be headed for failure.
This is just the latest, and the most poignantly tragic instance of judicial abuse tending to corrupt and destroy the moral fabric of our nation.
Despite the outward appearance of deliberation, what we witness now as an ongoing feature of the conduct of the judiciary at every level amounts to a judicial riot, in which judges and justices take it upon themselves to disregard the prerogatives of the other branches in order to assert an exclusive and tyrannical control of public standards and conduct.
Why is this happening?
The root of the problem is the abuse of the power of judicial review. This played a role in the Schiavo case, when the Florida State Supreme Court declared unconstitutional the Florida legislature's attempt to authorize protection for Terri Schiavo's continued access to nutrition.
But in a constitutional system based on checks and balances, one branch can run riot only if some other branch fails to exert the power necessary to constrain its actions within constitutional bounds.
This means that the rise of judicial tyranny represents a failure elsewhere in the government.
Now we know that in the Schiavo case, both the Florida and the national legislatures exerted themselves in an effort to secure her basic right to life. They failed because the judiciary has the power to invalidate their actions, either in application or through the power of judicial review.
In the end, the constraint of judicial abuse is especially the responsibility of the executive branch of government, since the executive has both the opportunity and the obligation to act without the interference of the judiciary, provided that in doing so he consults the political will of the legislative power.
Until and unless the people elected to wield executive power in our national and state governments recognize and act upon this responsibility, the judiciary will go unchecked, destroying the balance of power among the branches and with it our system of free, representative self-government.
The essay that follows reviews the thinking behind the separation of powers argument that substantiates this understanding of the current crisis of judicial abuse. Though it focuses on the Schiavo case as a critical and currently urgent instance of this crisis, it has a bearing as well on the judicial assault on marriage in Massachusetts, and the general judicial assault on public piety taking place through the nation.
The implication of the argument is clear: We cannot pin our hopes on new judges to end this long era of judicial usurpation. We need chief executives with the understanding, articulateness, and courage to assert the executive prerogative that will remind the judges that under our constitutional principles, neither the judges, nor the legislatures, nor the executives may claim permanent supremacy - rather it is the constitutional power of the people that is superior to them all.
The meaning of separation
These days, the term separation of powers is used as if it refers to a merely administrative division of decision-making responsibility. This ignores the fact that the Founders, and the philosophers such as Montesquieu from whom they drew inspiration, presented separation as a substantive requirement of free government.
As Madison wrote in Federalist 47, "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and where hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."
No one of the branches of government can have supreme and exclusive decision-making authority, because no one branch can, by itself, safely be allowed to exercise the whole power of government in any circumstance. The legislature makes the laws, but is powerless to execute them. The judiciary can decide cases in light of the law, but has no authority either to execute decisions once taken, or control the content of the law. The executive has the exclusive power of direct action, but no lawful authority to act apart from the provisions of the laws and the constitution, or the specific judgments of the judiciary.
In order to be separate, the branches must be independent. Obviously, this does not mean that in any case, a branch can simply act on its own authority - but it does mean that in every case, each branch must act on the basis of its own will and judgment.
The branches are subject to the laws and the constitution, but they are not directly subject to either of the other branches. The legislature, for example, cannot simply dictate to the courts the outcome of any particular case. Neither, however can the courts dictate to the legislature the content of any law. The legislature can establish programs and mandates for executive action, but cannot simply dictate to the executive the particular action to be taken in pursuance of its legislation. Because each branch substantively controls the power vested in it, the other branches cannot simply dictate the use of that power.
In the division of the whole power of government established by the constitution, each branch has some ability to prevent or interfere with the actions of the others. This is an inherent consequence of the division of government power. The laws passed by the legislature will be of no reliable effect if the executive refuses to enforce them or the courts refuse to apply their provisions to the particular cases that arise from them. Similarly, the executive may decide to act, but cannot sustain the cooperation and support of the citizenry (including those who comprise the enforcing arms of executive power) if the legislature refuses legal sanction to its action. The court may judge, but must do so without effect once the people realize that its actions have no basis in law, and/or the executive offers its opposition or simply withholds its cooperation.
None of the branches can effectively operate without the acquiescence or cooperation of at least one of the others. Differently construed, we could say that no one of the branches can sustain its authority when faced with the united opposition of the remaining branches. This aspect of the U.S. Constitution reflects the essence of law itself, which is a coercive rule made by and for the sake of the whole community which applies to the individuals who are in it.
The legislature, chosen by and representing the will of the whole people, makes the rule. The judiciary, by its judgments in particular cases, applies the rule. The executive, chosen by the people, represents its coercive force. In the absence of any one of these elements, there is, properly speaking, no law.
The separation of powers doctrine, by placing each of these elements under a discrete authority, effectively precludes the existence of law unless by some means all three of these elements are brought into play. Because by itself no one branch has the authority to make the law, it can never be forgotten that this authority rests ultimately with the people. They have constituted the government. All three branches of government are subject to their will, as expressed in the Constitution, and through laws made pursuant to its provisions, and carried out by their constitutionally selected representatives.
Negation and cooperation
Because our constitutions give each branch control over the power of government it represents, the separation of powers works to assure that those who comprise the government cannot act as if their will is the law. What one branch says, another may negate, thereby withholding from its pronouncement one of the essential attributes of law.
By withholding cooperation, for example, the executive may deprive both legislative acts and judicial decisions of the force of law. But without coercive force, there is no law, properly speaking.
By the same token, if the judiciary refuses to apply the law in particular cases, its provisions and penalties will not be applied to individuals, the executive has no authorization to act with respect to them, and the legislative will have no particular effect.
Obviously, if the legislature has provided no pretext of legislation, except where the safety and security of the Constitution or the people clearly require it, neither the judiciary nor the executive can claim lawful authority for their decisions or actions.
Isn't this a recipe for paralysis? Why isn't constitutional government hamstrung by the mutual negation of the branches? In the U.S. Constitution provision is made against this paralysis by giving each branch a role in the superintendence of the others, thus acknowledging that the existence of the law depends on their cooperation.
A president, for example, who acts in simple disregard of the laws passed by the legislature is subject to impeachment and removal by the Congress. The trial of impeachment, however, requires the active involvement and cooperation of the federal judiciary, in the person of the Chief Justice of the Supreme Court.
Without the cooperation of the Chief Justice, a trial of impeachment cannot go forward. Should the move for impeachment result from some transient passion in the legislature, opposition from the Court would check its initial fury.
Of course, if the legislature is determined to act, it might remove the obstacle by impeachment and removal of the opposing Justice, but since the president must appoint his successor, such action would shift but not resolve the impasse. The need for cooperation in fact and principle ought to provide a practical incentive for each of the branches to secure, in any given instance, at least the passive acquiescence of one of its coequals.
There is of course no guarantee that even with this incentive, paralysis and inaction will be avoided, but some degree of constraint upon government action must be the intended purpose of a frame of government whose ultimate aim is to forestall tyranny and protect the freedom of the people, which is to say the right of the people to govern their own affairs.
When situations arise in which no effective cooperation can be achieved between the branches, the determination of power shifts into the hands of the people as a whole, who by their election of different persons to the legislature or the executive can determine the balance of power one way or another, if they please. If it so happens that the people are not sufficiently united in their views, lawful government action is precluded - which in effect represents a decision by the people to leave matters to be determined by themselves, by their respective private capacities.
These reflections clearly imply that the separation of powers is not a passive delineation of decision-making responsibility. It is, instead, the constitutional consequence of the overall objective of free government - to prevent the permanent consolidation of government power under the control of one concerted will and judgment; i.e., to prevent tyranny. Separation is therefore not simply a doctrine established by constitutional fiat, but a goal to be achieved, one that must be respected if the people are to remain free.
The attainment of this goal requires that each branch of government actively assert and sustain its independent will and judgment, while at the same time showing a prudent regard for the mutual interdependence and cooperation required for effective government action. It also requires that the people, whom Hamilton calls the "natural guardians of the Constitution" (Federalist 16), hold their representatives accountable for the performance of their duty in this regard, since persistent failure in this duty represents the destruction of self-government.
The power of constitutional review
As a matter of logic and fact, the Founders assumed that the judicial branch would be the most vulnerable participant in the dynamic interaction that establishes the substantive separation of powers. In Federalist 78 Hamilton writes:
"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."
This argument is clear and on the face of it quite logical, but only on the assumption that the decisions of the judiciary do not absolutely override the other branches. Obviously, if the decision of the judge automatically binds the executive and legislative branches, it would make no sense to say that the judiciary has no influence over "either the sword or the purse." Its decisions would necessarily determine the disposition of the one and the other.
The assumption that the judiciary has neither force nor will must be premised on the notion that neither the legislature nor the executive is simply subject to the dictates of the judiciary. The other branches may check the judgment of the courts when it comes to the disposition of that power of government constitutionally allocated to their control. As we have observed already, that check consists in the prerogative of each branch to take a stand on constitutional grounds, and say no, refusing to submit to another in the use of its constitutionally separate authority.
This clear logic meets with resistance in our day because of the general acceptance of judicial review, what Hamilton in the same paper refers to as "the rights of the courts to pronounce legislative acts void, because contrary to the constitution."
The concept of judicial review has been used as the basis for a doctrine of judicial supremacy, whereby both the legislature and the executive must simply submit to the judgments of the judiciary, which claims to have the sole authority to interpret the Constitution.
Though unquestioned today, this notion met with objections during the debates over the Constitution, as Hamilton acknowledges, "from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power." (Federalist 78)
In the paragraph that follows this acknowledgment, Hamilton argues that "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."
In light of this reasoning, Hamilton quite logically maintains that when the judges compare the provisions of any law to the Constitution, "If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."
He continues, "Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both."
It is clear that in the exercise of its powers, the judicial branch cannot avoid the situation Hamilton describes, any more than it can avoid - as he later points out - the need to choose between contradictory laws, or contradictory elements of a particular law. In order to pass judgment in a particular case, the judges must decide which law will govern, and Hamilton's argument as to the primacy of the Constitution makes sense on the face of it.
But advocates of judicial supremacy overlook the fact that his argument from logic and principle applies with equal force to the other branches of government in the exercise of the powers allocated to them.
If, for example, the chief executive confronts a decision from the bench that conflicts with constitutional provisions as to his powers and prerogatives, or those of the legislature, or those of the people, he must give primacy to the Constitution, as the legislature must in a similar situation of conflict.
The Constitution supreme
Each branch must conduct its affairs in light of its responsibility to the Constitution, and indeed those persons who comprise the branches are all of them sworn to do so. Thus, while Hamilton's argument establishes the rationale for judicial review of legislative and executive actions, it also establishes the rationale for executive and legislative review of judicial decisions when those decisions affect legislative and executive responsibilities to, and for, the integrity of the Constitution.
But doesn't the possibility of executive and legislative review of judicial actions fly in the face of the fact, noted by Hamilton in Federalist 78 that "the interpretation of the laws is the proper and peculiar province of the courts." If disagreement arises between the branches as to the import of the Constitution or the laws, doesn't the judicial branch have the prerogative of deciding what shall be the authoritative interpretation?
In the ordinary course of affairs, this must be and is taken for granted, as Hamilton recognizes when he notes that "to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case." This implies that, though abuses are possible, the judiciary, by means of rules and precedents, acts as the watchdog of its own discretion.
If we accept this as proof of the ultimate supremacy of judicial discretion in every circumstance, however, the consequence must be the utter subversion of the separate identity of the other branches of government.
Every proper human action involves the faculty of judgment. Laws cannot be made, except the legislators make judgments about what aims are proper and attainable, what means are suitable and proportionate to the desired ends, and so forth. Similarly, no executive action can be taken without regard to the circumstances of action - whether the times, the available resources, the legally established priorities, and the actual details of a given situation allow for effective action.
In this sense, though the judicial power of government may be vested in a single branch, the exercise of judgment is inseparable from the operation of all the branches. If in the exercise of executive power, the judicial branch may without constraint substitute its judgment for that of the executive, it subsumes the executive power, and so too with respect to the legislature and the legislative power.
Unchecked by potential opposition from the other branches, judicial power necessarily becomes judicial tyranny. Since this substantively defeats the whole aim and purpose of the separation of powers, we must reject any understanding of separation that leads to this result.
Yet this is exactly what must result if we accept the arguments of the judicial supremacists. The Constitution, as it embodies the superior expression of the will of the people, supersedes the momentary will of their agents or representatives. Since any and every dispute over law and policy must be construed in light of constitutional provisions, anyone who can claim to be the ultimate arbiter of their meaning claims ultimate authority over the government as a whole. Yet by arrogating to itself authority over the government as a whole, the judiciary secures for itself a position superior to the Constitution itself, which is to say superior to the will of the people as the ultimate authority on which its legitimacy depends.
Thus in effect, the judicial supremacists overthrow the Constitution, acting much as the Grand Viziers of those Moorish potentates in Spain, who, by securing the opportunity to be the sole interpreter of the sovereign's will, substituted their authority for his, making themselves the rulers.
It follows from these considerations that, just as we must distinguish between substantive and procedural due process, so we must observe the distinction between substantive and administrative separation of powers. As a matter of administrative structure, the judicial power is vested in the judicial branch. As a matter of substantive constitutional integrity, each branch must retain and exercise an independent faculty of judgment, especially with respect to its own constitutional rights and responsibilities.
What must be obvious on the face of it, moreover, is that matters of substantive separation are not justiciable, meaning to say they cannot ultimately be decided by the courts. As Hamilton observes in Federalist 80, "No man ought certainly to be a judge in his own case, or in any cause in respect to which he has the least interest or bias." We must assume that the judiciary will be biased in favor of its own power, and its own judgment concerning the nature and extent of that power.
This does not of course mean that the courts may have no opinion on this subject. In fact, when unchallenged by another branch of government, their opinion will in any case prevail. It does mean that the other branches must retain the right to challenge and reject the opinion of the judiciary when it conflicts with their own considered judgment especially with respect to their own constitutional rights, responsibilities and obligations.
The executive's role
Given the importance to liberty of the fundamental constitutional principle that is at stake, and the potentially grave consequences of carelessness or neglect in its regard, we ought to proceed with great care in our application of the foregoing reasoning and conclusions.
Yet we must urgently forge ahead, as these days we encounter practically at every turn some new evidence that the failure to appreciate them has already allowed developments that represent the tyrannical consolidation of governmental powers the Founders rightly feared and rejected.
Contrary to their expectation, however, the greatest threat to constitutional liberty, and indeed to the very fabric of free society as a whole, has come from the judiciary, the branch of government Hamilton regarded as the weakest, and the least likely to achieve tyrannical control.
From education to prayer to critical decisions affecting the most fundamental rights of life and public conscience, our courts at every level now claim the right to impose their views, as law, not only on individual citizens, but on both the other branches of government.
They have taken over school systems, dismantled public monuments, and threatened to subvert the substance of institutions such as marriage, whose character has until now been unquestionably determined by the legislative, not the judicial power.
We must bear in mind that our constitutions, at both the federal and the state level, are all based on republican principles - which is to say, on the idea that laws are properly made by legislatures comprised of the elected representatives of the people, and which act as such only by vote of a constitutionally prescribed majority.
If and when the opinions of judges, without proper basis in our laws or constitutions, may claim to become law, the republican principle has been subverted, and with it the right of the people to representative self-government.
It is also clear that, unless the people mean to abdicate their role as the ultimate source of authority for our constitutional arrangements, they cannot accept the notion that judges may indulge in any constitutional fancies they please, without regard to reason, common sense, or the moral sense and conscience of the people.
When a substantial majority of the people regards a judicial determination as an unlawful abuse or usurpation of power, therefore, they are not obliged to acquiesce out of respect for the mere form of legal judgment.
As we have seen, the legitimate argument for judicial review does not "suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both." The question is, when faced with judicial abuse and usurpation, how can the people, by lawful and constitutional means, assert their superiority?
In Federalist 79, Hamilton observes that "the precautions for this [judicial] responsibility are comprised in the article respecting impeachments."
It would make sense to suppose that consistent abuse of the judicial power in a way that subverts the integrity of constitutional self-government would rouse public feeling and lead to action on the part of the representatives of the people.
When he discusses impeachment in Federalist 65, Hamilton says of the court required for this purpose that "the subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself."
It is hard to conceive of a more weighty public trust than the power to review the application, in particular cases, of the laws, and to void acts of the legislature deemed inconsistent with the provisions of fundamental law as embodied in our constitutions.
Impeachment offers itself as the natural remedy against judges who insist on assaulting the liberty of the people by unjustifiably usurping the prerogatives of their representative law-making bodies, or ignoring constitutional provisions intended to secure the rights of the people.
Unfortunately, in the present day, common sense has fallen prey to the self-serving arguments of the legal profession to the effect that impeachment is intended to remedy only statutory, not constitutional, violations.
We are told that judges cannot be called to account for the destructive constitutional effect of their decisions, only for their petty criminal conduct.
Crimes of limited effect may therefore be acted upon, but those political crimes that tend to destroy free society as a whole must not only be ignored, but treated with the respect due to the law. This pernicious illogic may appeal to the instincts of would-be Machiavellians, but it's hard to see how it makes sense for a free people intent on remaining free.
A case of judicial abuse
Still, until more politicians rediscover the clear common sense of Hamilton's understanding of impeachment, it will continue to be an ineffective, indeed a non-existent, recourse against practitioners of judicial tyranny. Is there no other?
We may see the answer most clearly in the context of a well-known situation in which the issue of judicial prerogative and the separation of powers has played a critical role.
In the State of Florida, a circuit court judge decided, despite a challenge from her parents, that Terri Schiavo's husband should be permitted to remove the tube through which she has been receiving nutrition after brain damage left her in a helpless condition.
The decision to starve her to death aroused a firestorm of protest in Florida and around the nation, leading the Florida legislature to pass a law specifically intended to prevent implementation of the judge's decision.
The legislature acted in support of Gov. Jeb Bush, who felt that the decision to starve Terri Schiavo to death constituted a violation of her basic right to life, a right specifically protected under the Florida state constitution (Article I, Section 2).
Thus, both the legislature and the chief executive agreed in the view that the judiciary's action violated the Florida constitution. The Florida judiciary disagreed.
Eventually, the Florida State Supreme Court declared the legislature's act invalid, mainly on the grounds that it violated the principle of the separation of powers by encroaching upon the decision-making prerogatives of the judicial branch.
But if the actions of the Florida legislature and the state's duly elected chief executive are representative of the people (and as a matter of constitutional principle they must be so regarded), a constitutional majority of the people agreed in the view that the Florida judiciary acted in violation of the state's constitution. So we must ask: If, as Hamilton maintains, the argument for judicial review rests ultimately on the superiority of the people's constitutional will over that of subordinate delegated authorities, can the Florida judiciary invoke the power of judicial review to thwart the effort of their representatives to assert and safeguard their understanding of the constitution?
In all fairness, however, that is not exactly what the Florida Supreme Court did. It simply regarded the legislature's action as an attempt to overturn the judgment of the court in a particular case. The prerogative to decide particular cases, of course, belongs to the judiciary. If the legislature can, after the fact, overturn particular judgments by law, the legislative power would absorb the judicial power, destroying the separation of powers required by our constitutional principles. Any legislative action that simply reverses judicial judgment in a particular case is on the face of it unconstitutional.
But the Florida chief executive shared the legislature's view. As governor, Jeb Bush represents a separate government power, a distinct and independent governmental authority. As the state's chief executive, he is sworn to uphold the Florida state constitution, an obligation that necessarily includes taking such actions as are necessary to preserve, protect, and defend the integrity of its provisions. If by some circumstance he becomes aware of a situation in which that integrity is being damaged, he is bound by his oath to act in its defense.
If, for example, he were notified that a court-sanctioned, racially-motivated lynching was taking place across the street from the state house, he would be oath bound as chief executive to intervene to prevent the violation of constitutional right and integrity.
Even if a racist judge had ordered the hanging, as chief executive he would have a responsibility to the Florida constitution making it impossible for him to respect the judge's order, however well decked out in formal judicial garb.
In such a circumstance, if Jeb Bush