Keith Burgess-Jackson

Here is a story about Mariano Rivera. Did I mention that I hate the Yankees?

To the Editor:

Here is a suggestion for Senators Hillary Rodham Clinton and Barack Obama that perpetually occurs to several million other election watchers: Listen to what the voters are telling you. We want both of you, so go ahead and declare that you will run as the “dream team.”

Then, elevate your campaigns to a serious debate about major issues and let the inevitably trivial differences in delegates decide who runs in first place. Your combined vision, leadership and experience will make you, and all Americans, the winners in November.

Dan Wharton
Riverside, Ill., March 7, 2008

Note from KBJ: The letter writer is obviously unfamiliar with the Clintons.

3-8-88 . . . Today is “Super Tuesday”, the day in which some twenty states hold their primaries or caucuses. The big winner for the Republicans was Vice President George Bush, who defeated Robert Dole in most of the states. Frankly, I’m surprised and disappointed by this, because I don’t like Bush. On the Democratic side of the ledger, the winners were Michael Dukakis, Albert Gore, and Jesse Jackson. Most of the states were in the deep south, so it was expected that Gore (a Tennessean) would do well. But nobody expected Dukakis, a northeasterner, to do this well. His support is evidently broad-based and strong. Losers for the day included Pat Robertson and Jack Kemp for the Republicans and Richard Gephardt and Paul Simon for the Democrats. I expect one or two candidates to drop out of the race soon. It won’t be long before we’ve got clear frontrunners who take potshots at each other.

The three basic principles of the Constitution are democracy or republicanism—self-government through elected representatives; federalism—decentralized government with most issues of domestic social policy made on the state rather than the national level; and separation of powers—with the legislature making and the judiciary applying the laws. Policymaking by the Supreme Court, by majority vote of a committee of nine lawyers unelected and holding office for life, making decisions for the nation as a whole from Washington, D.C., is the antithesis of the constitutional system, itself unconstitutional in the deepest sense.

Government by the Supreme Court should be rejected not merely because it violates the basic principles of the Constitution, but for the even better reason that those principles are deserving of respect. Democracy, federalism, and separation of powers are probably the best, if not the only, effective means citizens have of protecting themselves against government tyranny, rule of the many by the few. They are the principles that are almost surely largely responsible for the freedom and prosperity that has made for our exceptional success as a nation. It seems extremely unlikely, on the basis of both theory and experience, that replacing them with centralized policymaking by electorally unaccountable officials pretending to be performing the judicial function will in the long run prove to be a better form of government. Indeed, the Dred Scott decision alone, invalidating on no real constitutional basis Congress’s attempt to settle the slavery issue, leaving it for settlement by the Civil War, should be taken as conclusive proof that it is not. Whatever may be the best form of government, government by the Supreme Court, it is possible to believe, surely has to be one of the worst.

Why then do constitutional law scholars overwhelmingly favor decisionmaking on basic issues of social policy—such as the legal status of homosexuality—by the Supreme Court? The answer in a word is, of course, that it has for some time operated and, as Lawrence illustrates, is likely to continue to operate overwhelmingly to give them the policies they prefer and cannot get in any other way. The salient fact of American political life for the past half-century has been a deep cultural divide—in effect, a “culture war”—between the great majority of the American people and a cultural elite, made up of the “knowledge” or “verbal” class. This class is consisted [sic] primarily of academics, especially in elite institutions, and their progeny in the media, mainline churches, and elsewhere, whose only tools and products are words. Supreme Court Justices are almost always themselves products of elite academia and members of the cultural elite, seeking its approval and sharing its deep distrust of the mass of their fellow citizens. For the cultural elite, therefore, decisionmaking by the Supreme Court, tyrannical or not, is indeed an improvement on the constitutional system of decentralized representative self-government.

The nightmare of the cultural elite is that control of public policymaking should fall into the hands of the American people. A majority of Americans favor capital punishment, prayer in the schools, restrictions on abortion, suppression of pornography, and strict and effective enforcement of the criminal law, and oppose busing for school “racial balance,” all anathema of the cultural elite. It would hardly seem possible to live, the typical liberal academic believes, in a society with such policies. Because it is only their ideological compatriots on the Supreme Court that saves professors of constitutional law from that fate, they consider it their primary function to find means of defending and justifying the Court’s policymaking powers. A cottage industry has sprung up in the production of ever more esoteric theories of constitutional interpretation.

(Lino A. Graglia, “Lawrence v. Texas: Our Philosopher-Kings Adopt Libertarianism as Our Official National Philosophy and Reject Traditional Morality as a Basis for Law,” Ohio State Law Journal 65 [2004]: 1139-50, at 1140-2 [footnotes omitted])

Here.