Skip to main content

Because Civics isn’t taught in school these days, most of us have little to no understanding of the legal principles and framework upon which our country is built. Consequently, this causes them to think that court decisions are merely political. That is a very dangerous idea.

I don’t mean to suggest that there’s no political aspect to court decisions, because there clearly is. But courts do not have a blank slate upon which they can write their political biases. Rather, any political bias within a court decision must ultimately be rooted in, and therefore gets tempered by, the bounds of the law. Said another way, courts get to interpret the law, which is an awesome power indeed, but (except with regards to some civil disputes) they do not generally get to make law, especially at the federal level.

With this in mind, let’s review the foundational principles upon which our country is built and that ultimately serve (to a greater or lesser degree) to limit judicial discretion:

REPUBLICAN FORM OF GOVERNMENT

First, the US is a republic, not a democracy. In a democracy the people vote directly to make the laws. In a republic the people vote periodically to elect representatives who then make the laws. The founders chose republicanism not because they were ignorant of democracy but because they feared it. Few things concerned them more than the possibility of mob rule.

FEDERALISM AND CONSTITUTIONAL SUPREMACY

Second, the US is a federal form of government rather than a centralized form of government. This means that the states are the primary source of sovereign authority, and therefore of government power, and that the federal/national government enjoys only such powers as the states have specifically delegated to it in the Constitution. Said another way, the federal government cannot legally exercise any power unless that power has been specifically delegated to it by the states (not the people) via the Constitution. Very importantly this means (among other things) that the states are and will always be the primary determiners of what is legal and what is illegal. It also means that we are a nation of states, not just a nation of people.

Because we are a nation of states, we are not (and were never intended to be) a nation of “one person one vote”, and especially at the national level. The people have a voice in the House of Representatives to be sure (some number of representatives for some number of people) while the interests of the states are protected by the Senate (with each state getting two votes regardless of its population). Since laws must pass both the House and the Senate, the states have an equal say as “the people”.

This was intentional. It was this structure that encouraged low population states to adopt the Constitution, something they never would have done since their influence over national policy, even policies that affect them directly, would have been unreasonably diluted by virtue of their low population.

THE BILL OF RIGHTS

Shortly after the Constitution was adopted (and frankly even before), the founders became concerned about majorities exercising tyrannical authority over minorities by voting to deprive those minorities of certain fundamental rights. For this reason they proposed a series of amendments to the Constitution, commonly called the Bill of Rights, which guaranteed that individuals in the country could not be deprived of certain fundamental liberties—such as the right to assemble, the right to free speech, the right to bear arms, etc.—even by vote of the majority. Essentially, the states adopting the Constitution and these amendments exempted these rights from the democratic process.

Originally the Bill of Rights only limited the power of the federal government to interfere with those fundamental rights. However the Supreme Court has since interpreted certain subsequent amendments to the Constitution, such as the 14th Amendment, as extending these protections even against the states. Consequently it's not just the federal government that is Constitutionally prohibited from, for example, infringing the right to bear arms, but state governments are also.

This naturally begs the question: Which rights are so fundamental that they are protected by the Bill of Rights or other provisions in the Constitution and thereby exempted from the democratic process? Clearly those rights that are specifically enumerated in the Constitution are. But…are there any others?

Aye, there’s the rub. We’ll return to this question in a minute.

THE LIMITED POWERS OF THE FEDERAL COURTS

Generally speaking courts in the US do not have the power to make law but rather only to interpret law. This is especially true as regards the federal courts because, once again, the federal government enjoys only those powers specifically delegated to it under the Constitution.

Very critically, federal judges are not elected and are appointed for life (subject to removal for cause by impeachment). This was an intentional (and I think wise) decision on the part of the founders one purpose of which was to ensure that judges rightfully protecting the fundamental rights of individuals are not voted out of office by a majority that is hell bent on tyrannically ruling over a minority. Were judges subject to periodic election, majorities could simply vote out of office any judge who faithfully insulated fundamental rights from the democratic process, meaning that Constitutional protections against tyrannies of the majority contained in the Bill of Rights and elsewhere would be all but meaningless.

COURTS ARE A POTENTIAL THREAT TO DEMOCRACY

The authority to interpret law is an awesome power, especially when wielded by unelected persons appointed for life. When federal courts wield this authority to read their preferred politics into the Constitution rather than interpreting it according to some semi-objective standard that checks their discretion, everything noted above is called into question. Rather than a republic, we become an oligarchy. Rather than states remaining sovereign and the federal government having only limited powers, the federal government (and unelected members of it, nonetheless) become our Supreme Rulers. The Constitution, being then subject to the unchecked discretion and opinion of a few judges, ceases to provide any real guarantees at all, and most especially no guarantees of states rights or of fundamental individual rights.

Objective standards of judicial interpretation are therefore essential to preserve rights and avoid tyranny. However, because it is generally the courts themselves that decide what objective standard is to be applied in a given case, some argue that judges can always choose a standard that ensures their preferred, biased outcome. So, the tail (the court’s bias) wags the dog (determination of the appropriate objective standard).

While there is undoubtedly some validity to that concern, it’s not the risk that those seeking to muddy the water and further politicize the courts want us to believe. For example, courts are generally bound by precedent, meaning that they must generally apply a consistent set of objective standards when deciding cases. When they deviate from precedent they generally go to great lengths to explain why or else lose all credibility.

Scroll to Continue

Recommended for You

But (and this is critical) even to the extent court bias does in fact dictate the objective standard, not all such biases are equally dangerous. For example, a biased standard that results in states and legislative bodies having more say over matters than unelected judges (e.g., the Dobbs decision) is not nearly as dangerous as a biased standard that results in unelected judges overruling states or legislative bodies (e.g., the Roe decision). In the former case we risk “only” a tyranny of an elected majority while in the latter case we risk the tyranny of an unelected, tiny minority. Those risks are *not* the same, and anyone trying to equate them is being naive or dishonest.

SO, WHICH RIGHTS DOES THE CONSTITUTION PROTECT?

Alas, the Constitution is not entirely clear on which rights are so fundamental that neither the federal government nor the states can interfere with them. This is not necessarily because the Constitution is deficient but rather because words are inherently vague and we can’t expect any document to cover every single contingency. Additionally, people’s views of rights change over time, which complicates matters considerably.

Consequently, federal judges are tasked with interpreting the Constitution to decide which rights are exempted from the democratic process and which are not. And, unless we are going to devolve into a tyranny of an unelected few, the judges must adopt some sort of semi-objective approach to making such determinations.

In the case of the present court, the standard it has adopted is to determine whether or not a right in question is plainly exempted from the democratic process by the Constitution. These are called “enumerated rights”. If so, then neither the states nor the federal government can unreasonably burden that right.

But what if the right in question (such as abortion) isn’t plainly protected by the Constitution? In that case the judges seek to determine whether it can reasonably be inferred. And this is where the possibility for tyranny once again raises its ugly head.

To be particular, if each judge just votes his or her conscience as to what is “reasonable”, or his or her understanding of what a majority of the public wants, without some outside check, then we risk tyranny. Our fundamental rights then turn on the unrestricted whims of nine unelected people.

By contrast, to the extent judges consistently rely on an objective standard of reasonableness, their discretion is at least in some way limited and the risk of tyranny is thereby lessened.

The present court has (I think very wisely) chosen to limit its discretion in such matters by history. Said another way, when determining which rights are so fundamental as to enjoy Constitutional protection against interference by elected representatives—that is, when determining which rights are exempted from the democratic process—the court seeks to determine whether such a right was “deeply rooted in the Nation’s history and traditions”.

But in making such a determination, not all history is equal. The court looks in particular to whether the right was deeply rooted AT THE TIME THE CONSTITUTION WAS ADOPTED. So, for example, in interpreting the word “liberty” the court would look to how that term was understood when the Constitution was adopted and not necessarily how it's understood today.

The logic of this is hard to debate, really. After all, it beggars belief to think that the states implicitly intended to deprive their citizens of well-established fundamental rights, or to implicitly create new ones, when they transferred authority to the federal government by adopting the Constitution. And it beggars belief to think that these states were, by doing so, voluntarily subjecting their laws and legal traditions to the arbitrary whims of unelected federal judges. Clearly, the states understood when the Constitution was adopted that the powers of the federal government, and especially the federal courts, were subject to objective limits and that the states were not disrupting or modifying existing fundamental rights by adopting the Constitution.

Consequently, applying this standard, liberties that were well-recognized at the time of adoption (such as the right to bear arms) are, by inference, included among those that neither the states nor the federal government may unreasonably burden. By contrast, those that were not recognized at the time (such as abortion) were not and cannot be protected by the Constitution from the democratic process. To rule otherwise is quite simply tyranny.

In the Dobbs opinion the court went to great lengths to determine the extent to which abortion was “deeply rooted in our Nation’s history and traditions” at the time of adoption of the Constitution. It found that it was not, and this finding is unquestionably correct.

Those who lament the impact of the decision insist that this objective standard was adopted by the court precisely because it necessarily guaranteed the outcome that religious, conservative members of the court preferred. Mmmmm, maybe. But even if that's true, nobody, not even the three dissenting Justices in that case, has been able to propose an alternative, objective standard that would dictate the opposite outcome. The dissenters focused not on the law and not on proposing any objective way of determining the law but rather upon the adverse impact that reversing the role would have on many people. And upon the importance of honoring precedent.

I too lament that adverse impact, and deeply so. It pains me to no end that many women in some states will be denied abortions. And some of them may die or be severely injured as a result. That is nothing short of obscene to me. But, alas, the only way for a court to prevent that is to do something far, far more dangerous and obscene, something that (if history is any guide) invariably eventually leads to far, far more misery, injury and death—that is, to subvert republican and federal principles and centralize the power to make law in the hands of a few unelected elites.

The dissenters in Dobbs would have us believe that the ends (protecting some women from harm by preserving abortion throughout the nation) justify the means (subverting the most fundamental principles of our republic by placing unchecked authority to make law in the hands of a few unelected judges). And they argue that because, presumably, they don’t think such an approach is any real risk to the country. Convenient since, well, they presumably trust themselves not to abuse that power. Alas, history proves that such faith ultimately proves misplaced.

The shittiest part of life is having to often choose between two obscene outcomes. When faced with such difficult decisions we must generally choose the one that most minimizes the risk of absolute catastrophe rather than the one that minimizes a lesser harm in the short term. This is especially true where one of the harms (such as overturning abortion rights) can, with reasonable effort, be largely (though not entirely) mitigated in dozens of way (e.g., by vote of state legislatures, or by travel to other jurisdictions, etc.). By contrast the potentially catastrophic harm that results from eroding the foundations of our country by undermining federalism and our republican form of government cannot nearly so easily be undone.

[If you want to think and see more clearly; discern more accurately; predict more reliably and live, love, and understand yourself and the world more fully; or if you just want to watch people who do; then please continue to follow me here.]