You’ve heard that phrase, “re-arranging deck chairs on the Titanic?” It refers to efforts that are wasted, because they are useless.
Judicial reformists will take any progress they can get. But what they really want is a paradigm shift for the Third Branch.
Stated another way, if we keep doing what got us here, we will never get out of it. If we keep using the bricks to rebuild the house in the same way, we will keep seeing the same problems.
We all know there are problems. America’s rate of incarceration is too high. America has the fewest judges per capita of any so-called first-world nation. We can’t stop tinkering (baby steps eventually lead to new roads). But judicial reformists believe it is time to stop re-arranging the deck chairs. Let’s figure out where the iceberg got us, plug the hole in the side, and get on our way.
Part 1 of this series discussed the roots of the American self-governance system (here). James Madison believed that we should never restrict liberty. The solution, for Madison, was to inhibit tyranny: tyranny of government over the people and the tyranny of the majority.
Many know that the three branches of government were designed to thwart tyranny through checks and balances.
But its not as well known that the concept of federalism (having both a state and federal government) was also part of the effort to foil tyranny. The concept as explained by Madison, was to cut the country first in half (federal v. state) and then again. This would maximize the checks and balances. (Federalist Paper #51, here).
If we forget the structure of our government, the tools we have been given to hinder tyranny, we can spend lots of time and resources re-arranging the deck chairs without getting to the source of the problem.
At times, we need the federal government to be a check (and balance) on the state government. At times we need the state government to be a check (and balance) on the feds.
The Legislature keeps the executive in check through legislation. And when the Legislature gets out of balance, the courts should be there to keep it in check.
For years in Minnesota, our courts have been doing the work of the Legislature, instead of keeping them in check.
The Legislature has many members, lots of staff, plenty of attorneys. But the Legislature has taken the easy road, refusing to do the research necessary to comply with the Constitutions. (The Minnesota Legislature must ensure its laws comply with both the US and the Minnesota Constitutions.)
Then, the Legislature has expected the courts to do their work. The Legislature has expected people like me (or underfunded public defenders) to wait years for the right ‘test case’ to raise an issue in the courts, a constitutional issue that the Legislature should have researched in the first place.
Next, the Legislature has expected the Attorney General to go to court to argue that their statute should prevail.
Then, the Legislature has expected the courts to figure out how to make constitutional sense out of their laws.
Surprisingly, the courts have done this for the Legislature.
And what have the courts gotten in return? In return, the Legislature has cut their budget to the point they can barely operate. The Legislature has required the courts to collect money (filing fees), deposit it into the general fund, then required the courts to go back to the Governor and Legislature to beg to get some of that money back to fund the courts.
The underfunded courts, rather than sending badly drafted statutes back to the Legislature telling them – sorry, this does not comply (we call this “striking” statutes, or “declaring them unconstitutional”), the courts have tried in case law to make sense of any mess the Legislature puts out.
For an example, see State v. Crawley, a case from 2012, where the Minnesota Supreme Courts twists the statute into a pretzel in order to try to “save” it – rather than striking it, sending it back to the Legislature with a little note pinned to it that says, “try again!”
If the courts did this, the legislature would learn, quickly, that it cannot continue to abdicate its responsibility.
Cases that try to make sense of unconstitutional statutes do not protect the public. This tradition has harmed the People of the State of Minnesota. Because police officers don’t do 10 hours of constitutional research into case law before they arrest someone. They look at the statute. Narrowing statutes by case law creates a bigger mess than the Legislature created in the first place.
And, it only incentivizes the Legislature to continue to abandon its duty to the Constitutions.
In Minnesota, the Legislature has passed a statute that requires the Attorney General to support the statute if it is challenged by an individual. In other words, the Legislature wants the AG to argue that the statute wins, and the constitution loses. That is backwards.
The Constitution is a higher law than statutes. What we’ve done over time, is to elevate statutes above the constitution. Revitalizing our Constitutions is a major part of judicial reform.
To make it worse, the Legislature has, through its selected counsel, for many years, waived its appearance in the district court and the court of appeals. For everyone else, the courts require that arguments be made below before they can even be considered at the Supreme Court level. Yet the Legislature has been given special privileges, has been permitted to waltz in at the last minute, making arguments the individual cannot possibly tackle at that late stage of the game.
The Third Branch has always had the power to stop this.
Based on simple judicial rules, the Legislature loses when it fails to appear in the district court. It loses again when it fails to appear in the court of appeals.
The AG will likely say it lacks resources to appear in court every time a statute is challenged. Time to get out the tiny violins. The Legislature controls the purse. If the AG is underfunded, who should bear the brunt of that? Maybe the AG wouldn’t have to appear in court so much, if the Legislature drafted better statutes.
Imagine, as well, how many resources one individual does not have. Yet we’ve forced individuals to be private attorneys general, to fight for the Constitutions. We’ve expected individuals to take their time (sometimes they sit in jail during this) and resources (which they don’t have, either), to try to save our government. Is it any wonder these people feel disenfranchised?
The paradigm shift? Send the Legislature packing. Tell the Legislature, in no uncertain terms, the Third Branch is here to be a check and balance on you, and it’s time you started doing your job.
Tell the Legislature, no more free rides.
Tell the Legislature that the courts don’t have enough money to be re-writing all the messy statutes that the Legislature puts out – not until the Legislature gets serious about funding the courts.
Oh, and by the way, the US Supreme Court has already decided, many years ago, that narrowing by case law is a dangerous proposition, and that the courts are in trouble if they use that technique, and do not ensure that every single case follows it. (See Kemna v. Lee, here). Why would the courts take on all that extra responsibility? Especially if they are underfunded.
We were gifted, in this country, with a structure of government designed for multiple checks and balances. But the branches must take that job seriously, or it won’t work.
Get tough, courts. Stop letting the Legislature run roughshod over you. You are a co-equal branch. Let Minnesotans knows that the Legislature is expected to follow the law. Get busy doing your job protecting the Constitutions.
Obviously, the point of cutting the country first in half, means that Americans are entitled to rely on the federal half, at times when their constitutional rights are not being protected in the state courts. More on that in the future! (See Page “Our federal lawsuit against the Minnesota courts” at the top of the homepage.)