Friday, April 16, 2004

Congressional Override of Supreme Veto?

Finally a sensible proposal to curb judicial activism:

    "Rep. Ron Lewis (R-KY) has offered legislation in the U.S. House of Representatives that would allow Congress to overturn future U.S. Supreme Court decisions by a super majority vote.

    "The Congressional Accountability for Judicial Activism Act," or H.R. 3920, would give Congress permission to override certain U.S. Supreme Court rulings if two-thirds of both houses of Congress vote for it.

    Lewis said he drafted this legislation to combat the activist judges who have been "legislating from the bench" in recent years."

This is a far better approach than the stupid FMA for several reasons:

1. It is more general: The constitutional amendment approach to restraining the courts has the serious flaw that every issue that is the subject of judicial legislation would have to have a separate amendment. This would seriously encumber the elegance and integrity of a document that is supposed to be simple and clear. A brief glance at the ad hoc character of any state constitution should be sufficient reason not to go there on the federal level.

2. It doesn't target any specific group or ideology: Another drawback of the FMA is that it is clearly aimed at a specific minority group. Whether or not they agree with such a group (and I don't in this case) most Americans don't like to see them singled out for specific restrictions. It looks too much like bullying, and America has little patience for bullies.

Furthermore, although conservatives tend to be the group more interested in judicial activism, it is conceivable that those on the left could make use of such legislation to prevent a hypothetical right-wing court from enacting its own brand of activism. And lets not kid ourselves, hmm? This could happen.

3. It is more honest: One of the things that makes me uneasy with the FMA is that it claims to be concerned about judicial activism but, for reasons noted above, does not directly or effectively address that issue. I strongly suspect that the true reason many support the FMA has more to do with their moral objections to homosexuality than with their concerns about federalism and representative government. Which is fine, by the way. I tend to agree with people who say that the laws of our country ought to be pleasing to God. But if that is going to be our position, I have more respect for people who have the courage to state it frankly and take the political consequences. And I don't think God himself is particularly impressed with political double talk offered on his behalf. Seems to me Jesus was pretty emphatic about letting our "yes" be "yes" and not being ashamed to confess him before the world. And don't even get me started about a culture of divorce presuming to defend marriage. But that is a subject for another post.

4. It is more fundamental: But aside from any moral concerns, I just hate to see a perfectly respectable debate about the nature of government clouded with extraneous agenda items. Ever since reading the "End of Democracy?" debate in First Things and the even more challenging Tempting of America by Robert Bork, I have considered this to be one of the two most important issues that confronts us today (the other is school vouchers). If conservatives manage to get traction on these two issues we can begin to take back, not merely the government, but the hearts and minds of the country. There was a time when we actually believed that the pen was mightier than the sword. If this law passes, we might get to prove that we still do by debating the merits of laws rather than fighting to gain power through the courts. Which leads me to my final point:

5. It promotes discourse and stability: I am convinced that a primary cause of the divisiveness and even violence of our current political climate is due in large part to a feeling that political change is beyond our control. Since at least Roe v Wade (but if you read Bork's book you will see that it goes back much further) there has been the constant fear that laws passed with popular support will be struck down as unconstitutional. On the other hand, groups in the minority no longer attempt to persuade the other side because recourse to the courts is much more convenient. So extending democratic balance to a previously unchecked judiciary can do much to ease the tensions in both the short and long terms. And the required super majority to override a Supreme Court decision is precisely parallel to that required for overriding a presidential veto, so there is a certain comfortable feeling of familiarity to the whole proposal.

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