Thinking through Preserving Democracy: Rule of Law

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This is an ongoing review, taking it chapter by chapter, or so. This post covers chapter 4, The Rule of Law. While I generally try to be apolitical until the political sphere and the religious sphere clash, when Energion asked me to consider reviewing this book, I took the chance to do so to engage in a discussion which does far too often come in close contact with the Church. Each of these posts will discuss just various points within the chapter.

I was a bit apprehensive about reading this chapter, the more so since reading the previous chapters. I thought that it would be a rant about ‘liberal activist’ judges, and fully expected to end the chapter with a book burning. I didn’t and found myself in general agreement with Hushbeck on his overarching thought and thesis in this chapter, in that the Court system has moved away from the Rule of Law which provided against the judicial rule making we find so prevalent today. There are, however, problems.

First, I think it only shows intellectual dishonesty to say that religion did not play a large part in the mindset of the Founders and their generation. Whether this was the Christian religion that we know today or some philosophical hybrid which was birthed during the Enlightenment, we can reserve that quibble to some other time. Hushbeck, however, doesn’t delve into that for whatever reason, and I for one find it refreshing that he doesn’t. Instead, he allows that religion did play a large part in the Founders’ era and that, contrary to extreme elements in politicized history, the Founders were not contrary to religion. He quotes from Professor Huntington, however, who lists the statements from politicians, post 1811, that America is a ‘Christian’ nation, without listing the other side, including Supreme Court decisions and statements made in concession to Islamic pirates that indeed, the U.S. was not founded as a Christian nation.

He is right that by and large, the Country through the Court systems, have moved away from the Rule of Law, that Law being written documents, often times finding decisions based on non-law, or even non-U.S. law, statements, such as Jefferson’s statement on the separation of Church and State. Further, he is correct that in the United States, as in the West I would remind him, much of secular law is derived from the long-standing legal tradition found in the Scriptures of the Jews and the Christians. Even the prompting statements against royal rule is found therein and the reason for revolt, especially after a reinterpretation of Romans 13. While modern society by and large doesn’t like the idea that our legal foundation is derived in some way from the biblical texts (even politically, we can see purposed framing of our three branches from experiences found in the Torah), they are. Hushbeck, I hope in a future volume dedicated to this chapter completely, would do well to show those examples as well as provide more substantiating an collaborating support for his points. This is, by and large, my single most important quibble with the author.

One thing which bothers me, as Hushbeck goes on to describe what happened to move our Constitution from the vaulted pedestal that it held to the position now where it is used as a backdrop, if needed, in decisions is that he accuses ‘intellectuals’ (p111) in the 1930s of aiding and abetting these actions. First, such a statement could be made to read as something anti-intellectual; I try not to take it as such, especially since the sources he does use are intellectual themselves. What bothers me the most, however, is that the same intellectuals ‘in both the United States and Europe’ who fought for secularization are those same who under gird his economic doctrines. Rand and Hayek, among others, were part of this intellectual elite, which fought to move the West away from the sectarian past but they did it economically. Neither were a friend of religion or the religious underpinnings of society. This is not merely Hushbeck’s problem, but even many today who fight to keep the ‘intellectuals’ from removing religion from the public square but enlist in the fight to remove religion from the economic arena as led by ‘intellectuals’.

Another issue that I have is that this country is simply not a Democracy, and yet, Hushbeck seems to describe it as so, in which the majority can overrule the Rule of Law. I admit, this paradoxical reading may be subjective, but on page 115, he takes to task the Courts and their ability to rule laws, even those passed by a majority of the people, unconstitutional. He writes that such actions by the Courts, is removing from the people the right to democratically pass such laws. Yet, throughout the chapter, Hushbeck, rightly, states that the Courts only ability is to rule if the law is constitutionally acceptable. This issue comes, I believe, from the removal of Federalism, a removal granted by the 14th amendment, in which it recreated a United States Government from the government of the united States. Now, all laws, even municipal codes, are subject to the same prohibitions against Congress when the Constitution says, ‘Congress shall make no law…’. The issue here is that this country has become, contrary to the Founder’s and much of the Constitution, a democracy and not a Federal Republic. As a final statement, the reason the House was elected by the People of the several States is to give the People a voice in the Federal Government to counter the States’ voice through the Senate.

His take on Roe V. Wade as a constitutional decision is balanced and dead on. He notes that unless the judges are equally (p122) activist in their overturning, this law is likely to stay. He is right, that this decision by the Supreme Court goes beyond the pale in corrupting and expanding the power of the Courts to exercise legislative ability in creating or ordering the creation of laws which support their decision. He clearly knows his facts and history here (although, again, more support should be applied and he could find much support against the decision, even from liberal jurists).

In his ‘What can be done’ section at the end of the chapter, he notes that the only thing which can be done is to insist that Judges rule according to the original mandate. He previously noted that Alexander Hamilton wrote that the Court, which was only given the power to rule as an up and down on the law, was the weakest of the branches. There is a reason for this. In Section 2, Article 3 of the United States Constitution, the power of the court is severally limited. (I note that in Section 1 of the same Article, Congress has the power to establish lower Courts, with only the Supreme Court being mandated, and with the power to establish comes the power to unestablish.) The section reads,

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

It is not merely the power to threaten impeachment or to insist through political pressure that a judge rules according to the Law (as this is often decided by which way the decision goes as to who believes the judge is an activist), but Congress has first the power to force the Supreme Court to hear only those cases which it deems within the jurisdiction of the Court. Secondly, the Congress has the power to remove jurisdiction from lower courts or, if necessary, to completely remove all federal courts except that of the Supreme Court.

Overall, Hushbeck is right and is concern is one which all Americans, regardless of political leanings should pay special attention to. Courts which base their decisions on contemporary trends or anything not found in the written law is a dangerous thing to the Republic. One of the problems facing this Republic of ours is the lack of real jurisprudence and a turning away from the Constitution to look for a foundation which is not written in stone, so to speak, but those written on scratch pads. I hope that if a future volume is forthcoming from Mr. Hushbeck, that he takes it all and devotes it to righting the place where the Court System as left us.

There is also something to be said that instead of one Legislative body, we have three – the President through the Executive Orders and the Courts through their ability to force legislation.

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3 Replies to “Thinking through Preserving Democracy: Rule of Law”

  1. Shame on you, Joel, for bringing Constitutional law to my biblioblog feed. Judicial activism seems to be so much more politicised in the USA than it is here.

    1. Judicial activism, Ari, is relative. If I don’t like it, than the Judge is an activist. Our Judges are emperors and lords, the lot of ’em, unless they agree with me, of course.

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