Fixing the Froward Court

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A Jefferson or a Thomas is an Original Rules umpire. His view is that an umpire is bound by the rules in the Official Baseball Rules. He sees each rule as unchangeable, except if a rule is amended or repealed in the manner prescribed by the Official Baseball Rules. He applies each rule as written by the Professional Baseball Playing Rules Committee and as understood by the team owners which ratified them.

A Hamilton or a Sotomayor is a Living Rules umpire. Each views an umpire as authorized to interpret the Official Baseball Rules dynamically. He sees rules as changeable by an umpire, as needed, to adjust baseball to the mores and expectations of contemporary society, as those mores and expectations are perceived by the umpire. Each rule is to be applied by an umpire as though umpires are authorized to accept or reject, revise or repeal, any rule among the Official Baseball Rules.

So, too, with the United States Constitution. The historical Jeffersonian approach to constitutional law is limited authority for the United States government, and modest judicial power. The historical Hamiltonian approach is unlimited authority for the United States government, and expansive judicial power.

From the beginning of the Republic, in 1789, Hamiltonians have had the judicial upper hand. That circumstance survived the Dred Scott decision (1856), which tossed blacks off the constitutional bus. Dred Scott was rendered by Chief Justice Roger Taney (served 1836–1864), a Hamiltonian, who was a sorcerer’s apprentice to Chief Justice John Marshall (served 1801–1835), also a Hamiltonian.

In the subsequent War Between the States, the North defeated the South. A consequence of the victory was that the Hamiltonians defeated the Jeffersonians unreservedly.

Nowadays, more than ever, a word of the United States Constitution “means just what” United States Supreme Court justices “choose it to mean – neither more nor less.” Lewis Carroll, Through the Looking Glass, and What Alice Found There, chapter 6 (1871).

A turning back of the historical clock is impossible. The United States Supreme Court will remain a political institution which decides policy questions.

Worse, the United States Supreme Court claims  for itself sole power to decide constitutionality. The judicial branch of the United States government perceives itself as more equal than the coequal executive branch and legislative branch of the United States government.

The time is come to curb the United States Supreme Court. Two proposals:

1. Judicial service should be limited to one ten-year term. The proposed term of office, which exceeds that of representatives, presidents and senators, guarantees judicial independence. Limited bench time circumscribes the damage doable by a capricious justice.

2. For an opinion to be handed down, subscription by six justices to both reasoning and result should be required. 5-4 decisions and plurality decisions would be prevented thereby.

This proposal would have precluded some judicial horrors. Texas v. Johnson (1989) (5-4). The act of burning an American flag is speech, protected by the First Amendment. Boumediene v. Bush (2008) (5-4). An enemy combatant, an alien who is outside the United States, has the constitutional right to apply to a United States court, which is the United States, for a writ of habeas corpus. The Military Commissions Act of 2006 was an unconstitutional suspension of that right.

Other judicial horrors would not have been precluded thereby. Korematsu v. United States (1944) (6-3). Japanese-ancestry citizens may be interned. Roe v. Wade (1973) (7-2). Despite absence of Uterus Clause in the United States Constitution, abortion is a constitutional right.

Partially-effective medicine is better than no medicine at all.

Kruger is a lawyer in private practice.