In a comment I posted on the Christian CADRE Comments blog page, I made the following statement:
The consent of the governed is noted in the Declaration of Independence quoted above--and numerous other of our founding documents--as the basis for any government's legitimate claim to power. If the judges depart from that to which the people agreed in promoting their own political agenda, then they are undercutting the very foundation that they rely upon to add legitimacy to their decisions.
Thus, when judges use the language of the Constitution (such as the Equal Protection clause of the 14th Amendment) to grant equal rights to homosexuals on a par with heterosexuals--a position that would have been unthinkable to most people in the 1860s and 1870s when the 14th Amendment was adopted--contrary to what the polls suggest is contrary to the vast public opinion even today, the decision is being made without the consent of the governed, and the edifice is built without a firm foundation.
My point was very simple and far from unique: The Declaration of Independence holds that the legitimacy of the government of the United States rests on the "consent of the governed." Where the government acts in a manner which is contrary to the will of the people, it is acting illegitimately because it is acting beyond that consent. In the case of homosexual marriage, the polls show that the public is overwhelmingly opposed to granting homosexuals the right to marry. Nonetheless, the courts seem poised to grant homosexuals the same right to marry as heterosexuals under either the Equal Protection Clause or either of the court made (recognized?) rights to Privacy or Personal Autonomy. In doing so, the courts are, in my opinion, acting illegitimately because they are acting without the consent of the governed.
Austin Cline, the Atheism/Agnosticism editor for About.com, used my statement as his foil for arguing that the Supreme Court, when acting to review laws of the Congress in light of the Constitution, must be acting with the consent of the governed because the public does not stop the court from exercising its authority. In other words, the very act of deciding, regardless of whether the public supports the decision or not, is an exercise of power with the consent of the governed since the public has both enacted the original Constitution which granted the court this power, and has not acted to withdraw this power and therefore impliedly consents to these actions by the court. Moreover, Mr. Cline argues that my quote suggests that I supported the idea that judges should be prohibited from overturning democratically enacted laws.
The purpose of this essay is to (1) elaborate on the meaning of my quote, (2) provide background information in support of my reasoning, and (3) show why I believe that Mr. Cline has made an error in his answer. In doing so, I am using Mr. Cline’s comments as the foil for my own responses.
Cline's First Comment
"The judiciary exists because of the consent of the governed — if people wanted, they could eliminate the judiciary completely."
Mr. Cline commences with the trite phrase: "There is so much wrong here that it is difficult to know where to begin." In my experience, an author normally uses this phrase right before saying something truly silly showing that they have put insufficient thought into their next statement. True to form, Mr. Cline’s first comment, quoted above, is not a particularly useful one.
If one were to divorce reality from theory, what Mr. Cline says is true. However, I am certain that Mr. Cline is not seriously advocating that people should amend the judiciary out of the Constitution. "You shouldn’t throw the baby out with the bathwater" is a phrase that fits well here. Even though the federal judiciary is defective, the judiciary also serves many essential functions in the Constitutional scheme which no one argues ought to be discarded. Most people implicitly recognize this, and so few (if any) people are arguing that the entire Judicial Branch should be eliminated. That would be foolish.
Moreover, one of the Constitutional concepts that would be damaged, if not destroyed, by eliminating the judiciary is the concept of separation of powers. As most people are keenly aware, the Constitution divides the U.S. government into three branches: Article I (the Legislative Branch), Article II (the Executive Branch) and Article III (the Judicial Branch). The Legislative branch (seen as the primary governing branch by the founders) was itself divided into two houses: the House of Representatives (representing the people) and the Senate (representing the States). This separation of powers between the various branches was a fundamental part of the founding structure of our government. Mr. Cline acknowledges the importance of this separation when he refers to the "delicate checks and balances" with which the government was created. Obviously, this "delicate checks and balances" would be deeply damaged if the judiciary were to be completely eliminated.
Thus, I will take it for granted that Mr. Cline does not seriously believe that people objecting to the overreaching by the Judicial Branch should be advocating elimination of that branch and will move on to his second comment. (Elimination of the Judicial Branch is different from limiting the breadth of that power, as will be discussed further below.)
Cline's Second Comment:
"The judicial power to overturn democratically enacted laws also exists because of the consent of the governed — again, if people wanted to end this power, they could.
I don’t know if Mr. Cline has a legal education, but if he does then he must have learned that his second comment is, at minimum, misleading. Depending on his perspective in making the statement (looking historically or at the present state of affairs), his statement either ignores the historical context in which judicial review was founded or ignores the fact that limiting the courts’ power is a very difficult task.
A. Judicial Review Was Not Explicit In The Constitution.
One of the real interesting aspects of the U.S. Constitution is its very limited description of what the Judicial Branch is supposed to do. Article III of the Constitution, which creates and circumscribes the powers of the Judicial Branch says only that "the judicial power of the United States shall be vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." That’s it. There is some mention of jurisdiction of the Court in Article III, Section II, but the judicial power itself has been left largely undefined. It is certainly true that the judicial power had some easily recognized powers. It would naturally extend to cases brought before a court to determine if a particular law had been broken by an individual. This was the sine qua non of the judicial power. But one power that is not expressly granted in the Constitution is the power of judicial review, i.e., the power in the Judicial Branch to review legislation by the Congress to determine whether it is consistent with the provisions of the United States Constitution.
B. Judicial Review May Not Have Been Implied In The Constitution.
What is less clear is whether the power of judicial review was implied. While it wasn’t a major part of the debate, the founders did debate the question of the extent and limit of the Judicial Branch’s power prior to the ratification of the Constitution. To my knowledge, empowering the courts to overturn legislation would have been without precedent in the late 18th Century. I do not believe that English courts (which served as the skeleton for the U.S. legal system) had the authority to nullify any act of Parliament. Thus, if the idea was to have the courts overturn legislative enactments as contrary to the Constitution would, arguably, seem to have been at least a part of the debate. But, in fact, there is very little discussion of the issue in the debates surrounding the ratification.
Patrick Henry, writing as "Brutus" in The Anti-Federalist papers, recognized the possibility that the Judicial Branch would seize broad powers to determine the law according to their own wishes, and objected to such an overreaching power being given to the courts in Anti-Federalist Paper #11. Notably, he did not believe that the courts would have the ability to overturn legislation, but was more concerned that the courts would be acting independently without any check by the legislature. In a very foresightful comment, 'Brutus' stated:
[The courts] will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort. The legislature must be controuled by the constitution, and not the constitution by them. They have therefore no more right to set aside any judgment pronounced upon the construction of the constitution, than they have to take from the president, the chief command of the army and navy, and commit it to some other person. The reason is plain; the judicial and executive derive their authority from the same source, that the legislature do theirs; and therefore in all cases, where the constitution does not make the one responsible to, or controulable by the other, they are altogether independent of each other. (Emphasis added.)
'Brutus' does not appear to believe that the courts would be able to overturn Acts of Congress because that would upset the balance of power. Instead, he was concerned that the courts would be able to act independently of the legislature without any means of overturning the courts' actions. So even though the Anti-Federalists appear to have correctly foreseen that the Constitution sets up a judiciary without a sufficiently effective check on their power so as to give the courts broad power to make decisions without constraint, even the Anti-Federalists did not foresee that the courts would have the power to overturn acts of the Congress through the exercise of judicial review.
For their part, the Federalists (led by Alexander Hamilton, John Jay and James Madison) acknowledged that the courts may occasionally encroach upon the legislative authority through the cases presented to them, they thought that the relative weakness of the judiciary would prevent overreaching by the courts.
'[T]he supposed danger of judiciary encroachments on the legislative authority. . . is in reality a phantom,' [Hamilton] declared. Conceding that '[p]articular misconstructions and contraventions of the legislature may now and then happen,' Hamilton was nevertheless confident that 'they can never be so extensive as to amount to an inconvenience,' given the 'comparative weakness' of the Judicial Branch (meaning its lack of control over sword or purse) and the availability of impeachment: There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations.An Independent Judiciary: Report of the ABA Commission on Separation of Powers and Judicial Independence, Appendix A, by Charles Gardner Geyh.
The question was not cleared up prior to the ratification of the Constitution and the new government was left to work out the question in practice. In fact, it wasn’t until Marbury v. Madison in 1803, that the Supreme Court (through Chief Justice John Marshall) first claimed the power of judicial review. The decision in the Marbury case, however, does not prove that the power to review the Constitutionality of legislation was originally intended to be granted to the Judicial Branch. Rather, it is one of the very first judicial power grabs that has turned the "least dangerous branch" into what many people see as the most dangerous due to its unchecked, countermajoritarian and politically insulated position of power.
Thus, if Mr. Cline is suggesting that the power of judicial review was expressly granted in the Constitution, he is incorrect. If he is saying that judicial review was impliedly part of the original structure of the Constitution, that is not clear either. But even if it was intended, the extent to which it is now being exercised was clearly not part of the understanding of the majority of the founders.
C. The Difficulty in Changing the Law.
Perhaps Mr. Cline meant that the people consent to the power of judicial review as a result of the fact that they now know that the Judicial Branch is exercising that power but still do nothing about it. If that was his intended meaning, at least he is standing on more solid ground. It certainly is true that most informed people know that the Judicial Branch is using its power to overturn legislation, but there has been very little in the way of effort to restrict the power through the legislature or through amending the Constitution itself. But there are obvious reasons for that failure.
First, any student of political science can tell you exactly how difficult it is to pass a law through Congress (the only legislature empowered to enact laws limiting the jurisdiction of the court). Bills have to be introduced into the House (or Senate) where it goes to committee. Bills can die in committee without an "up or down" vote being taken on the potential legislation or it can be amended to death or it can be voted down. If it clears one committee, it may need to go to a second where it goes through the same process. If it is finally escapes committee, it may never get to a vote on the floor of the House (or Senate), or it may be sent back to committee. It goes on and on and on. Moreover, the more volatile and controversial the subject of the bill, the more reason that the legislators (who are almost always interested in re-election) will seek to avoid actually voting on it. And this reluctance to vote has been enhanced by a knowledge that if the legislators do nothing, they can depend on the courts to do it.
The process of Amending the Constitution is even more difficult. The process requires two-thirds of both Houses of Congress to vote for the Amendment plus the legislatures or conventions of three-quarters of the States. Two-thirds majority is very, very difficult to obtain (it is often called a super-majority), but obtaining a vote by three-quarters of the states on an issue that is contested is very, very, very difficult. After the enactment of the Bill of Rights, the Constitution has been amended only 17 times in 215 years, with the most recent Amendment being an amendment that was originally proposed by James Madison in 1792! Moreover, given the reverence that is voiced for the wisdom of the founding fathers of the Constitution whenever an amendment is proposed, the chances that the Constitution will be amended for anything more than minor matters is probably very unlikely. (See, e.g., the Remarks of Sen. Dick Durbin, United States Senate, Tuesday, July 13, 2004, where he stated: "The founding fathers understood the importance of this document that they had written. They knew that it embodied within its four corners the basic principles of America . It wasn't a dead document. It was a living document, which could be changed. But I think the oath of office which each of us takes is a reminder of our solemn responsibility when it comes to this Constitution. We may propose amendments to laws, make motions on the floor, pass resolutions, make our speeches, but I am one who believes that when it comes to this Constitution, we have a special responsibility. A responsibility which requires respect and humility.")
Now, add to this difficulty the fact that over the years, the public view of the Supreme Court has morphed from another branch of the government acting in a political manner to a view that is almost religious in nature. The court is seen as quasi-priestly: interpreting the Constitution as a neutral, detached observer. Moreover, there is no question that some good things have been done by the Supreme Court in its interpretation of the Constitution. I don’t know anyone who would argue that the famous Brown v. Board of Education which first enunciated the principal that "separate but equal is inherently unequal" and led to the desegregation of the public schools had a positive outcome (some, such as former Supreme Court nominee Robert Bork, argue that the process was illegitimate, but that is different from arguing that the result was not good). As such, the court has built up a tremendous amount of goodwill among the people as a whole, and consequently, suggestions that the Judicial Branch should be limited in its authority to determine cases is often met with hostility.
D. Shifting the Difficulty to those Seeking to Maintain the Status Quo
Finally, it is a lot easier to amend the Constitution through the courts than through the political process. As noted above, one encounters almost insurmountable roadblocks when seeking to amend the Constitution or pass laws relating to matters of great public concern using the legislative process. Going through the courts short-circuits the ordinary political process and leaves those who were formerly opposing the procedure into the group seeking to change the law.
For example: Prior to 1973, the law was that every state could enact whatever abortion regulations it saw fit. The federal Constitution, from most people's points of view, did not have much (or anything) to say about the issue. Thus, if someone wanted to have abortion rights protected on the federal level, the appropriate avenue should have been the legislative process. As such, they faced the burdens set out above to seek to enact those laws. But Roe v. Wade made abortion a Constitutional right, and the burden of changing the law has shifted 180 degrees to the people who were formerly defending the status quo. Now, as the result of the changed positions, it is the people who were formerly considered the defenders of the status quo who must carry the burden and overcome the obstacles of enacting legislation or—even less likely—amending the Constitution which the abortion rights advocates formerly faced. In other words, the court's intervention changed who had the burden of using the legislative or amendment process to change the law.
So, what happens when the courts use the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment to the Constitution to make same-sex marriage or same-sex unions a constitutionally protected right? It does so in light of polls and votes that show that the American public, as a whole, is overwhelmingly opposed to the practice of same sex marriage (to the tune of 70% to 30% in Missouri, for example). So if the court acts in this way and rules that such marriages or unions are Constitutionally protected, what has to happen for the court's decision to be changed back to be consistent with the overwhelmingly belief of the public? If the means by which the court legalizes same sex marriage is to find that it is a required right under the Constitution, then the only legitimate way to overcome that court decision (other than by another court decision) is through a Constitutional Amendment. And even though 70% of the public is an overwhelming number, it isn’t even high enough to equal to three-quarters majority required to amend the Constitution. Thus, the Constitution is amended without the consent of the governed because the intended process is short-circuited by the court.
So, when Cline makes his comment that people can always "end the power" of judicial review, that is practical nonsense because even if people wanted to end it generally (which I don't believe people do), it is very, very difficult for the Constitution to be amended to so end this power grab by the courts.
Cline's Third Comment
Third, we should consider just what it would mean if (as the above quote seems to argue for) judges were prohibited from overturning democratically enacted laws. Should the laws always reflect the popular will? That’s contrary to the sort of government the authors of the Constitution had in mind.
Of course, my quote doesn't say that the judges should be prohibited from overturning democratically enacted laws. In fact, neither I nor (to my knowledge) anyone else who holds similar positions to mine holds such a view. As a result, the entire paragraph that follows is Cline attacking a straw man. Regardless, I do want to examine part of his argument.
Mr. Cline asks, "Should the laws always reflect the popular will? That’s contrary to the sort of government the authors of the Constitution had in mind." I will answer that question presently. But Mr. Cline first needs to answer a question to support his view: does the fact that the "consent of the governed" was part of the creation of the Judicial Branch mean that the judiciary is free to engage in whatever action it wants and still be within its right because it was established by such consent? To answer that question requires an examination of the language of the Declaration of Independence where that phrase is found.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."(Emphasis added.)
Like all great thought, the Declaration was not born in a vacuum. The political ideas contained in the Declaration (largely written by Jefferson with modification by others of the founders) followed after the ideas of John Locke, Stephen Junius Brutus, William Blackstone, and Samuel Rutherford. All of these men were, as their writings clearly reflect, heavily influenced by the Bible. All of these men also believed that the only legitimate governments were formed as the result of social compacts of the people. As stated by Locke:
[T]hat which begins and actually constitutes any political society is nothing but the consent of any number of freemen capable of a majority to unite and incorporate into such a society. And this is that , and that only, which did or could give beginning to any lawful government in the world." (Emphasis added.)Locke, Second Treatise, 56, Sec. 99.
Thus, our founders believed that the government derives its power to govern from the consent of the governed. This means that Mr. Cline is correct in part in his overall concern that the consent of the governed is exercised when the government is formed. But Mr. Cline’s comment only catches part of the meaning of the Constitutional language. You see, the "consent of the governed" has two aspects: the first is in the creation of the government in entering into the social compact in the first place. But there is also a second, equally important aspect: the consent of the governed is necessary for the maintenance of the government. This is seen in the following clause in the Declaration where it specifically states that "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it." Thus, simply because the people created a particular form of government through the consent of the governed does not mean that the government remains legitimate where the government becomes "destructive" of the legitimate ends of government.
When does a government act destructively of the legitimate ends of government?
Locke goes on to explain that certain acts of tyranny end the Kings' right to rule. If the King dissolves the legislature, sets up his own arbitrary will in the place of law, stops the legislature from meeting, alters electoral rules without public consent, subjects the people to foreign domination, abandons the office, or combines with the legislature to act contrary to the public trust, he has committed those acts which make a lawful revolution to his rule an appropriate response.Amos, Gary T., Defending the Declaration, page 146-147.
Now, I am not advocating the overthrow of the government of the United States. I am pointing out that when the government becomes tyrannical the people have the right to change it. When the judiciary begins to usurp the role of the legislature -- the role of legislating the health, welfare, safety and morals of the people -- the court is acting outside of its role as the judicial power. In such cases, it is good and right for the people to, at minimum, complain about such overreaching and to seek to change the opinions of both the public and the judges that would hold such activities to be acceptable judicial action.
What’s the bottom line here? At a minimum, the "consent of the governed" language which is found in the Declaration of Independence requires not only that the government be formed by such consent, but allows that the government's continued legitimacy is also derived from such consent. This consent is only maintained when the government does not act arbitrarily or contrary to the general principles of the Constitution. In those limited circumstances where the public acting through the legislatures is acting to unreasonably harm others, it can be seen as the duty of the court to step in. But in doing so, the court must rely upon the principles stated by the Consitution and the founders as the basis for its decision. If the court leaves both these principles and the general public opinion and makes decisions based on a changed reading of the Constitution, the court is acting illegitimately.
In the case of same-sex marriage, it may be that the public mood is changing and that such marriages will some day be considered acceptable by the majority of Americans. However, it would be wrong for the court to use the Equal Protection Clause to rule that they are Consitutionally mandated because it would be clear that the people who enacted the Equal Protection Clause in 1873 would not have dreamed that the clause could be used for that purpose. It would also be wrong for the court to use the Right to Personal Autonomy to mandate same-sex marriages because that is a judicial principal that is not even part of the document-the Constitution-that represents that principles approved by the public as a whole. Rather, it is a judge made fiat that represents the very worst in judicial overreaching.