Ignorance is very dangerous

By Thomas L. Jipping
web posted November 6, 2000

They say ignorance is bliss, but when it comes to the courts and the Constitution, ignorance is very dangerous. The presidential candidates debate taxes and Medicare, and Al Gore sighs and lies about his mother-in-law and his dog and about Love Story and Love Canal, but the real issue in the November election is whether the people or judges will run the country.

Polls by the National Constitution Center show that more than 40 per cent of Americans do not know the number of branches in the federal government, and 80 per cent do not know the number of amendments in the Constitution. Nearly twice as many teenagers can name the Three Stooges as the first three words of the Constitution and just 2 per cent can name the chief justice of the U.S. Supreme Court.

This ignorance is dangerous because the next president will likely appoint at least one Supreme Court justice. Only four presidents in American history have not done so, and two of those died after only months in office. The seven terms with the current Supreme Court lineup was last exceeded when President James Monroe's 1823 choice of Justice Smith Thompson broke an 11-year appointment gap.

The current Court has three blocs of justices, none of them a majority. The largest group contains four liberal activists, justices who believe that by morphing the law into what they want it to be they can re-create society in their own image. In contrast, the three restrained justices believe the law already means something and all they can do is apply it as is. In the middle are two justices who flip and flop between these two approaches.

Now I may be a lawyer, but I can at least do simple math. An activist majority (as in the decision striking down Nebraska's ban on partial birth abortion) requires only one of the flippers while a restrained majority (as in the decision allowing the Boy Scouts to determine their own message and membership) needs them both. That's a pretty slim reed holding up our freedom.

How new justices will affect this equation depends on both retirees and appointees. Significantly, the three justices most often singled out for likely retirement include a member of each bloc: activist John Paul Stevens, a 1975 Ford appointee; flipper Sandra Day O'Connor, a 1981 Reagan appointee; and restrained William Rehnquist, originally a 1972 Nixon appointee. Replacing Stevens, for example, with a justice who believes the Constitution already means something will make it easier to create majorities that respect how the people wish to govern themselves. Replacing Rehnquist with an activist, on the other hand, will create an absolute majority that easily can impose its own preferences on the people.

The stakes are enormous because judges are so powerful. Not only do they have the last word on hot-button issues such as abortion and religion, but also make decisions that can strengthen or weaken the very foundation of our freedom. America's founders designed a political system that preserves freedom by limiting federal government power. Last May, in a case titled United States v. Morrison, the Court enforced those limits by striking down a portion of the Violence Against Women Act, a law that would have turned local criminal prosecutions into federal civil lawsuits. The vote was 5-4.

America's founders designed a system that preserves freedom by dividing federal power among three branches, leaving the task of making laws to the legislature. Last March, in a case titled FDA v. Brown & Williamson Tobacco Corp., the Court enforced this principle by striking down regulations by an executive branch agency that had not been authorized by Congress. The vote was 5-4.

In the term now in progress, the Court will again tackle cases raising these fundamental principles. In a case titled Browner v. American Trucking Association, for example, the Court will decide whether Congress can delegate its lawmaking power to executive branch agencies such as the Environmental Protection Agency. The EPA claimed its strict new regulations for acceptable levels of ozone and soot were permitted under the Clean Air Act. A decision that the agency went too far could scale back the entire federal regulatory system.

In another case titled Solid Waste Agency v. Army Corps of Engineers, the Court will decide whether the federal government can use its legitimate authority to regulate "commerce…among the several states" to control local activities such as dumping solid waste into landfills. The Army Corps of Engineers says the Clean Water Act allows it to regulate this dumping activity where it involves areas of water that might attract migratory birds.

The next president will likely appoint at least one new Supreme Court justice, and will certainly appoint up to 200 lower court judges. They have the last word on 99 per cent of the cases in the federal system. These judges will either allow the people to govern themselves and define the culture or do it for them. Freedom itself hangs in the balance.

Tom Jipping is the director of the Center for Law and Democracy at the Free Congress Foundation.

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