Hamilton v. Ashcroft
In all the hubbub recently over the Supreme Court's Lawrence v. Texas decision, I kept hearing that the court was undermining the decision of "the majority" in deciding as it did. In his dissent, Justice Antonin Scalia put it this way:
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
In other words, we should just wait until the people come around to a new way of thinking. The court shouldn't make these decisions for them. I find these statements shocking from a sitting Supreme Court Justice, who should understand that the courts were intended to limit the power of the executive and legislative branches when necessary. All of those who are currently decrying the increased authority of the courts are really saying that they want to deny the courts the authority given to them by the constitution. As Alexander Hamilton wrote in The Federalist Papers:
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.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. 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.
Sounds good to me, but not to John Ashcroft. Ashcroft is currently asking federal prosecutors to report all "downward departure" sentences -- sentences which do not meet mandatory minimums set by congress.
This memo, of course, isn't the beginning of this story. To find that, you'd have to go back to the mid-to-late 80's, when members of Congress were so gung-ho to prove their "tough on crime" credibility that they started setting harsher and harsher "mandatory minimum" sentencing requirements for all sorts of things. This was the beginning of the end of the independent judiciary promised us by the constitution. No longer would judges be allowed to judge cases based on their merit, but on complicated guidelines.
Often, these guidelines resulted in horrifying miscarriages of justice -- as demonstrated by the case of Dorothy Gaines, who was sentenced to 19 years in prison solely on the word of a drug dealer who cut a deal (listen to here story here). Bill Clinton pardoned Gaines and other victims of sentencing laws back when all you were hearing about was Marc Rich.
The sad fact is that Ashcroft's memo is really just reminding federal prosecutors of the new policy defined by the Feeny Amendment to the Amber Alert law. As Ryan King, research associate for The Sentencing Project told me this morning, the memo "just creates a system of surveillance over the judges" who are unwilling to hand down harsh sentences to those who don't deserve it.
What is disgusting to me and others is that those who are pushing so hard to weaken the judiciary are the same people who claim to defend the Constitution. John Ashcroft told The Federalist Society last November that it was his responsibility to defend it. "Those of us in the Justice Department are federal law enforcement officers," Ashcroft said. "First and foremost, we must follow the Constitution."
Instead, he has been part of an administration -- and was part of a Congress -- that worked against the Constitution at every turn. "You've got two branches of government that are usurping the powers of the third," King told me.
The next time you hear someone talk about "activist" judges, remind them that the judiciary was designed to be an equal partner in the leadership of this nation. Anyone who believes in the Constitution should defend its quickly dwindling power. Especially politicians. As King says, in praising those (like Senator Edward Kennedy) who oppose Ashcroft's I've-got-my-eye-on-you-tactics, "I would like to see some other politicians realize where their power ends." Until the people realize that limit, I doubt many politicians will.