States Rights, Part 2

This is the follow-up post to a Terry Schiavo post I wrote, arguing against federal encroachment. The quick summary is that I believe the feds should only get involved where you can credibly answer yes to the question, "does the federal government need to be involved in this?" Because I think most health care issues can't meet that test, and in spite of my extreme distaste for the probable outcome in Terry's case, I'm sticking to my federalism guns on this one.

In this follow-up, however, I want to sort of rehash an argument I made a long time ago concerning a different balance of powers issue. Vertical balance of powers is that separation between federal and state power and turns on the question of which governmental system is best equipped to efficiently deal with a problem. Horizontal balance of power, on the other hand, is the division of power between co-equal branches - between legislature, executive and judiciary. This issue exists on both the federal and state levels, although the varying state systems makes it hard to discuss them all unless you generalize. That's what I'm going to do here, taking the federal system (with which we are all familiar) as my prototype.

If we take for granted that our tripartite government branches are co-equal, then there is a problem when one of those branches can avoid the checks and balances designed to keep them co-equal. Take the case of judicial review: if the Congress passes a bill, presumably it is because Congress feels the bill is constitutional (and if not, then everyone who voted for it should be strongly censured). If the executive signs that bill into law, presumably it is because the President feels the bill is constitutional. If the judiciary then decrees that the law is unconstitutional, then we have one-third of our federal government imposing its will on the other two-thirds, and for the past 200+ years we seem to have grown accustomed to that idea.

I think that was a terrible mistake.

My proposed remedy is not to remove the power of judicial review from the courts, but to give the other two branches a collective override mechanism, by which they may decide that a particular piece of legislation is, in fact, constitutional. Such a mechanism would restore the common-sense assumption that two-thirds of the government is more powerful than one-third of the government. But it should be a limited mechanism, to avoid tyranny of the majority, and so should only be available with a super-majority of Congress and the President's signature. My proposed plan does not intrude on the judicial function of interpreting the law, because Congress would not have the power to apply the law to any particular case, only - with the aid of the President - to respond, when the Supreme Court says "this is unconstitutional," that "no, it isn't."

Now consider the Terry Schiavo case in this light. We have two branches of the government that have attempted corrective action in a state issue. And we have one co-equal branch that say "screw you all, we say what goes around here" and declaring the actions of the other two branches unconstitutional. Under my proposed mechanism, the legislature and the executive would have no power to make findings of fact in the case, or rule that Terry is not in a persistent vegitative state, or rule that Michael Schiavo is a world-class douchebag. I'm not asking for micromanagement, here, because judges do have to actually do their jobs. I'm saying that if two branches of government have some way of telling the state supreme court that yes, their actions are constitutional, then the court should back down in the face of two co-equal branches. If the people of the state think their representatives have made a mistake, vote them out.

In drafting the federal constitution, James Madison feared both the tyranny of the majority and the tyranny of the minority. By giving unlimited power to judges to strike down the will of the people, the tyranny of the majority is very effectively hampered. But in the process we grant unfettered license to the minority to act as tyrant through the simple process of filing a lawsuit in front of the proper judge.