Unfortunately for the republic, one of the most critical issues that energize both sides of the Presidential election is the prospect that the new President will likely appoint several Supreme Court Justices, not to mention scores of Federal judges on lower benches. I say “unfortunately” because our Founders could not have conceived of the current policy domination of the judicial branch and the degree to which the legislative branch has abdicated its role in the development of public policy in many crucial areas, particularly social policy. Some have gone as far as to suggest judicial hubris in the conduct of the Supreme Court, particularly in its view of the U.S. Constitution as a document authoritative only as to questions, not answers. It is as though the Court feels that some hot-button issues cannot be peacefully handled by the democratic process. To some, republican democracy is not an institutionalized process, but a list of substantive results based on universalistic principles of equality and justice as they define them. The potential backlash is damaging to the institutional integrity of our constitutional system which is based upon balance among the three branches. David Broder has warned of the “derailing” of democracy in his recent book that discusses the growing trend toward the use of Initiative and Referendum, which he says is driven by the power of money because it can dictate the success or failure of issues in a referendum. I’m no fan of I&R because it is antithetical to our republican system of legislating, but it fills a void because it is customer-driven and offers an opportunity for real debate on issues that are often perverted by the legislative process or deferred to the judiciary. In 1996, the journal First Things conducted a symposium on this issue, entitled, strangely enough, “The End of Democracy?: The Judicial Usurpation of Politics”, in which the participants condemned recent judicial activism as both procedurally undemocratic and substantively immoral or unjust. I read most of the proceedings and came away feeling that there is, in fact, serious cause for concern about the integrity of our republican system and our ability to govern ourselves if we continue to allow the judiciary to usurp the legislative process and balance of powers.
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