Monday, December 13, 2004

Courting Disaster

I someone wants to read a thought provoking book, Pat Robertson’s Courting Disaster is pretty good. The book overall is well researched and written with a great deal of knowledge from a Christian perspective. While I usually disagree with Pat Robertson’s theology on the 700 Club, his theology degree combined with his law degree provides an interesting slant on the American situation. His thesis, with which I agree, is that the Supreme Court and the Federal Court system is out of control, over reaching their constitutional bounds and needs to be stopped. He has great research on quotes from Justices and other amazing sources that will give great insight into the liberal mindset, and the amazing arrogance of the Supreme Court.

Yet my first major problem with this book is Robertson’s lack of a solution. He stresses the role of prayer, and with that I agree. Yet, he seems to state that the way we overcome this problem is by appointing good Justices in the first place, but this solution is completely depended on constant political victories and the ability of individuals to keep their hands off of the unlimited power. Something that even Robertson admits has not been done by Republican appointees.

Robertson gives 6 Constitutionally possible options.
1. Congress can deny, by a simply majority, the Supreme Court appellate jurisdiction.
2. Congress can pass legislation stating that the Supreme Court is not the supreme law of the land.
3. Congress can pass tort reform.
4. The House can impeach judges who over step their good behavior clause by being activists.
5. Congress can increase the number of justices from 9 to whatever it takes to get a majority.
6. The people and their representatives can make the case to abide by the 10th amendment.

Elsewhere Robertson notes disobedience as an option, both by the President and by people. Yet, while granting that maybe a President could disobey, all of these situations are not enough. The first can be overturned by the next Congress. The second is meaningless and can be overturned. The third does not really address the issue of an activist judge, but rather simply limits law suits. The fourth has some merit, but opens the can of worms of impeaching judges because you disagree with them. Only extreme cases should be brought forth for impeachment (someone overturning an American law based on International precedent would be a reason in my opinion). The fifth was a bad idea in FDR’s day, and is today as well. The sixth is close to a solution but people asking their representatives to limit their own power will never work.

Which brings me to my next point. Robertson seems to actually be a part of the problem rather than part of the solution. Robertson desires a National answer to a national government problem. He wants people to talk to their Nation representatives about returning the to the 10th Amendment, which states power is reserved for the states. He ends the book with a plea to reelect President Bush and Republican or at least conservative Senators. In the most blatant example of contradiction he lauds the judicial activism in Brown v Board of Education, but does not like it elsewhere. He notes, by quoting George Wills, that an unintended consequence of Brown is that the Supreme Court now tries to right perceived social ills by activism. One cannot really uphold activism when you like it and rail against when you don’t. Please don’t misunderstand me, segregation is morally wrong, but the issue is did the Supreme Court have the right to strike it down, were their reasons for striking it down correct, and can one be allowed and not another. Robertson never really gets down to the root cause of this trouble, at least not in my opinion. He concentrates on the recent decades of the 60’s and forward because they are the worst. He mentions the founders, but never draws a distinction between Nationalism and Federalism. He does touch on some early court cases of activism, but does not show how they fit into the modern picture. Robertson is writing a book about the stakes in modern politics, but not really proposing long term solutions to anything.

Of course, I must offer my own solution. The answer lies within the states, not the national government. The 10th Amendment exists, as does the 9th (a similar amendment reserving rights to the people). We do not need to talk to Congress about these rights, we need simply to exercise them. The people of South Dakota, for example, should simply ban abortions on the state level. Some federal judge will strike it down, but South Dakota should refuse to acknowledge this ruling. Constitutionally South Dakota would be correct. Arrest those who perform abortions and enforce the state law. What would the Federal judiciary do? This sort of Constitutional Crisis needs to happen. The states must act on their own rights. One cannot expect help from the National Government. Why would they give up such power? Even if they did, it would only be for a time. If states never exercise it on their own, it will never be ensured.