Courting Disaster

by Joseph S. Bommarito

Writer Richard Coduri (“Checks, balances ensure our rights will be preserved”) believes that the checks and balances contained within the Constitution of the United States will provide relief from the dismantling of fundamental rights by the executive and legislative branches.

Will the Court fix it?

He worries that “Since Sept. 11, two of the three branches of our government, the executive and the legislative, have been ignoring the entrenched deliberateness so carefully crafted by the framers of the Constitution.” If Mr. Coduri thinks the third branch has set itself apart from the dismantling of fundamental rights, he has largely ignored American judicial history.

As early as 1821 Thomas Jefferson wrote:

"The germ of destruction of our nation is in the power of the judiciary, an irresponsible body--working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall render powerless the checks of one branch over the other and will become as venal and oppressive as the government from which we separated."

The original intent of the framers in creating a judicial branch may have been to provide a check on the overweening aspirations of the congress and the president. To the contrary, while the Supreme Court has often ruled to protect individual rights such as speech, association, and religion, it has just as often failed to protect an underlying foundation and principle determinant of all rights: property. The right to property is critical to freedom. 

The link between rights and property goes even deeper. Rights are property according to chief constitutional architect James Madison, who wrote in a 1792 letter, “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.” 

Madison’s statement goes far beyond what we typically conceive of when we think of property, and rightfully so. The Supreme Court, however, continually and increasingly restricts the concept of property rights in favor of the State. Where does it get the power? 

Supreme Court – Supreme power 

The Supreme Court has given itself the power to decide what is or isn’t constitutional and, in doing so, has removed checks on its own power. This power is not granted by the Constitution, but by the Court itself in Marbury v. Madison. Since 1803, the Court has gradually assumed the lead power in the triumvirate of executive, legislative, and judicial branches, with occasional heavy nudging by the executive. What it has done with this power is to free the Congress and the administration from the constitutional constraints originally placed on those bodies. 

It is not only decisions of the Court that reverberate so loudly through the land, but the reasoning behind the decisions. Rights are protected only when the Court arrives at the correct decision for the correct reason. A wrong decision is wrong whether the reason is correct or incorrect. But it is often a correct decision coupled with incorrect reasoning that places rights in jeopardy. 

For example, the phrase “clear and present danger” currently bandied about in the debate on the impending war against Iraq was not coined to justify action by the State against external enemies. It derives from a freedom of speech decision by the Court upholding the Sedition Act of 1918, Schenk v. United States (1919). Justice Oliver Wendell Holmes, Jr. wrote: 

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

He added, in explanation:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

Explanations appended to opinions are often dangerous because they introduce extraneous elements. This particular reasoning flies in the face of individual rights. To Holmes, the speech of the man falsely shouting “fire” is construed to be a clear and present danger to bringing about a substantive evil, a panic in which people would be harmed. This is all right, as far as it goes. He wrongly concludes that Congress has a “right” to prevent this evil through its police power by making such speech illegal. 

Discussing this decision, the text of Leading Constitutional Decisions by Robert F. Cushman explains that freedom of speech is relative, in the sense that it is limited by the coexisting rights of others [Right on!] and by the demands of national security and public decency. [Emphasis added to highlight this bummer.] This reasoning serves only to advance the police power of the State, not individual property rights that would be violated in such a case. 

The correct reasoning in the crowded theatre scenario would be one that addresses the “coexisting rights of others” rather than some “right” of Congress. The rights being violated are property rights: the right of the theatre patron to occupy a seat and enjoy an entertainment in exchange for his money; the right of the theatre owner to profit from the unencumbered use of his property; the rights of all to be free from physical harm.

Courting disaster?

Unfortunately, it is the Court-enhanced police power of the State in its many forms that holds the trump card. That trump has been played time and again by attacking property rights through programs like Social Security, the war on drugs, wetland protection, and ever-new perversions of the doctrine of eminent domain. Each of these is constructed to fight some “substantive evil” and each one expropriates the property of the individual for some “greater good.” Welcome to State Socialism. 

If the Court has allowed the State to increasingly violate the right of property time and again, is it a Court to be trusted? Is it a Court that truly balances the other branches of government? Or is it a Court that has permitted an increasingly unfettered State to violate property rights in the name of protecting us from what H. L. Mencken called “an endless series of hobgoblins, all of them imaginary?” 

Mr. Coduri places his trust in the judicial branch to restore constitutional constraints on government. But he wisely covers his bets by saying, “There is no telling what the Supreme Court will do with these issues, but I remain hopeful.” 

He then counters himself by declaring, “Do not mistake my optimism for a lack of vigilance.” He does not inform us as to what good his vigilance will do with an appointed judiciary but instead waxes optimistic again, “But I feel secure in the knowledge that Madison's checks and balances will in the end steady our flailing national ship.” In 480 words he changes position so many times that I feel compelled to ask, “Can you spell ‘waffle’?” 

Mr. Coduri apparently trusts a Court that is sole judge of its own power, a Court that favors the “rights” of government over the rights of individuals. But as Madison himself wrote, “Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties or his possessions.” 

Trusting the Supreme Court is courting disaster.