There is a lot of discussion about judicial reform throughout the country. But what is it? It is a healthy sign of our democracy that a number of different groups with differing philosophies claim the name, ‘judicial reform.’ What are the common threads in the judicial reform philosophies?
And what are the differences?
Surely, a book could be written on this topic. This series of posts is a brief discussion.
America’s Roots: The Federalist Papers
Many branches of the judicial reform movement harken to the roots of our system of government.
When potential ratification of the US constitution was being discussed in 1787-88, Publius published arguments in favor of the constitution. These papers have now been attributed to James Madison, Alexander Hamilton and John Jay. In the 20th Century, the compilation of those articles became called The Federalist Papers. Every political science major in the 20th Century likely studied them. Federal judges have cited to them.
It’s never wrong to review the theoretical foundation of our system of government. Even with the lapse of years, there are always lessons to be learned from our roots. But like any analytical tool, this review should be kept in perspective. There is simply no way that Hamilton, Jay and Madison could have predicted our 2012 world. (Although if they were alive and writing today, I bet they’d have a blog….).
Of course, The Federalists were not writing on a blank slate. They, each in turn, were influenced by philosophers and other writers of their time. Madison, it is said, drew from the works of Montesquieu and Hume, and other writers of the enlightenment. And The Federalists’ writings have been commented on over time.
Tyranny of the Majority.
In conceptualizing a governing democracy, Federalist 10, now attributed to Madison, warned of the danger of factions. Madison defined faction as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
The danger of factions was tyranny – otherwise known as oppressive power.
Because the form of democratic government emphasized the will of the people by majority vote, Madison warned that the mischiefs of democracy would swallow the benefits.
“A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.”
For Madison, it was impermissible to restrict liberty. “The latent causes of faction are thus sown in the nature of man,” so the cure is to control their effects.
Over time, this concept (also discussed in Federalist 51) has become known as the tyranny of the majority.
Alexis de Tocqueville in Democracy in America Vol. I, published in 1835, posited that the dangers of the tyranny of majority over thought in America would lead to violence of party spirit and the judgment of the wise subordinated to the prejudices of the ignorant.
Published in 1859, John Stuart Mill’s work On Liberty discussed the tyranny of the majority as the “struggle between authority and liberty.” This described the tyranny of government over the people, which must also be controlled. And certainly, ‘liberty’ is a theme that frequently emanates from the pen of a judicial reformist.
These twin tyrannies (by the majority of the people and by government over the people) have been met in various ways in our democracy.
The Bill of Rights as Protector of Individual Liberty.
Of course, the US Constitution was ratified. But shortly thereafter, several amendments were added in order to protect individual liberties, such as the First Amendment protecting free speech, association, and freedom of religion and the Fifth Amendment, which guarantees that the federal government will not deprive an individual of freedom or property without due process of law. These are often called the Bill of Rights.
The US Supreme Court has over time applied the substantive liberty protections of the Bill of Rights to protect individuals from the tyranny by state governments.
US Justice Brandeis wrote in 1927,
Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
The Role of the Courts in Protecting Individual Liberties.
Justice Brandeis was, of course, discussing the role of the courts in protecting the individual freedoms at issue. And in particular, he was discussing the court’s role in deeming a majority vote by legislative enactment a violation of individual liberty. (Now, we generally refer to this as the court’s review of the constitutionality of a statute.)
Indeed, a ‘cornerstone’ of our current system of government is the role of the courts in protecting individual liberty.
In 1900 US Supreme Court Justice Harlan wrote,
The doctrine of legislative absolutism is foreign to free government as it exists in this country. The cornerstone of our republican institutions is the principle that the powers of government shall, in all vital particulars, be distributed among three separate coordinate departments, legislative, executive and judicial. And liberty regulated by law cannot be permanently secured against the assaults of power or the tyranny of a majority, if the judiciary must be silent when rights existing independently of human sanction, or acquired under the law, are at the mercy of legislative action taken in violation of due process of law.
Why is this Relevant Now?
Minnesota and other parts of this nation are engaging in a struggle of factions and a debate about current government control, and how all of this affects liberty. The debate? How are members of the judiciary to be selected? And when and how does the public have a role in what occurs in the judiciary once those judicial officers have been selected? I’ll get into some particulars in my next post in this series.
But can it ever hurt for us as a debating community to remember our roots? To remember the theoretical debate that spawned and shaped the three branches of government, and to intelligently, consciously select options grounded in law and liberty?
Justice Brandeis also wrote in 1927,
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.
And I leave you with the notion that there is time and opportunity for full discussion. Indeed, to prevent this debate from being marked by fear of change, holding onto current power, or silencing critics, all of those involved are called upon for fearless reasoning befitting our education, in furtherance of our political duty, and out of respect for the liberty that has been so long preserved by those who came before us.