The Alito and Roberts Confirmations: Obscuring the Real Issues
- the Separation of Powers. Alito's views on Presidential powers, particularly in relation to wartime surveillance and detention powers, have gotten much recent publicity. When the constitution was framed, the federal government had much less power than it does today. It could not "reach into" the states and exercise significant power over individuals. Certainly Lincoln used the War for Southern Independence as an excuse to assume extra-constitutional powers. Subsequent Presidents have intermittently followed suite. On one hand, the importance of the balance between the federal government branches has never been more important as the federal government gains more and more power. But the more fundamental issue is left unstated. That is, that the federal government is itself too powerful. All three branches have worked in recent decades to intrude on the liberties of citizens. The truly vital separation of powers is the one which is left unstated: and that is the disturbed balance between the people and states on one hand, and the federal government on the other. Had that balance been preserved, there would be much less worry about the degree to which a President exercised executive power within the limited domain of the federal government. And with that balance disturbed, there may be no effective way to prevent the executive, legislative, or judicial branches from assuming despotic powers over the American people.
-The Senate Confirmation Process. One of the reasons the Senate confirmation process is flawed is that since the 17th amendment, Senators are elected directly, rather than being selected by the state governments. In our original federal system, the Senate was the voice of the state governments within the federal government. It is signficant that the framers gave the Senate the "advise and consent" function on federal judicial and executive appointments, and not the House of Representatives. It was evidently considered vital that the representatives of the state governments had a veto over appointments to the federal judiciary. Since the state governments have been "disenfranchised", the Senate is primarily interested in its own perogatives. Who is there to question potential justices on the 9th and 10th amendments, guaranteeing the rights of the states and people? Former Georgia Senator and Governor Zell Miller has called for the repeal of the 17th amendment primarily for another reason; and that is the tendency of Washington to force unfunded federal mandates on the states. Without the states having a direct say in the federal system, the protections of the 9th and 10th amendments have atrophied.
-Judicial Review and Stare Decisis - Chief Justice John Marshall's exercise of judicial review cemented the federal judiciary as the final arbiter of the constitutionality of the laws of Congress. The fourteenth amendment and its expansion expanded the scope and range of federal authority directly onto the citizens and laws of the states. The principle of Stare Decisis means that rulings by the courts, even if wildly extra-constitutional, are assigned the weight of precedent, making them much more difficult to overturn, and generally giving only the Supreme Court the right to overturn significant precedent. This combination of factors has increased the frequency with which rulings incompatible with the principles of limited government enshrined by the constitution are decreed by the courts to be the law of the land, and then additional decisions building on these precendents drive federal policy ever farther from the design of limited government. The long series of rulings related to separation of church and state and forced school integration in the 20th century are notable examples of this phenomenon. It is most notable that the application of Stare Decisis is highly selective; the 9th and 10th amendments are never given the respect of this principle. Stare Decisis properly applied would provide an anchor to the original constitution, not to extreme extra-constitutional rulings. Many thinkers in the early republic, including Jefferson, warned about giving the courts sole authority to interpret the constitution. The fact that in modern America no respect is given to the amendments which supposedly guarantee the reserved rights of the states and people vindicates this admonition. Modern Americans are indoctrinated with the Orwellian thesis that the federal government is the guarantor of their rights. In fact, our rights and liberties will only be secured if the people, acting through the states, repudiate the federal government's unconstitutional monopoly of power.