Friday, September 20, 2013

Levin vs Localist Solutions on Stopping Judicial Tyranny

So I am reading "The Liberty Amendments" by Mark Levin, because a friend wanted me to, and because, like Denny Crane, its "kind of a big deal" right now. Of course I am biased towards Localist solutions, so it is not surprising that I find Levin's proposals to be less satisfactory than those proposed in Localism, A Philosophy of Government.  I expected that, but I did not expect the size of the gap.  I mean, the localist way of dealing with it just seems a lot better.  But who cares what I think?   Read on and see what you think.  

I could name almost any problem he tries to solve and show how localism is more likely to really fix it.  For this piece though I will just pick one of the big subjects both attempt to reform and compare the two:  Judicial over-reach, some would say tyranny, is a serious problem in the United States. It is a weakness in our system which must be corrected if we are ever to really be a self-governing nation rather than a nation which has an elaborate facade of self-government. Levin lays out the problem quite well in his book. It is his solutions which are inadequate, especially compared to the comprehensive, integrated approach to the problem advocated in Localism.

His solution is to give a super-Majority of Congress or state legislatures the ability to void Supreme Court decisions for a period of two years after they are made, and to limit justices to twelve years terms. First a word on term-limits. The primary advantage of term limits in allowing the people to take back control of the government is that the establishment might not have a deep enough bench of quality insider tools fill every office if there is a rapid turnover. That means that term limits will work very well at the state legislative level, be a marginal improvement for Congress, and not work very well for Senate. The Supreme Court is the apex of power, and it is not even elective.

 Term limits won't help improve the Supreme Court to any noticable degree because the system can easily come up with enough sell-outs to fill the openings. How much of a deterrent is a twelve year cap for a group of people who don't usually get the job until they are well into their 50s and will get a good retirement for life after those twelve years anyway? It sounds good, but as applied to the Supreme Court is it a non-solution.

Even the idea of giving state legislatures an over-ride is far less than meets the eye, and it has a significant downside. If impeachment is a scarecrow because it is so hard to do, then this will be an even smaller scarecrow. It is basically just as much trouble as impeachment, with less reward because you are only voiding a single decision instead of removing the tyrant who made it from power. The tyrant can always keep making the same decision on the next case, because it is much easier for them to make a ruling than it is for two-thirds of the state legislatures to come to an agreement within a two year period regarding a case which might only seem to affect one of their number at the time.

Since many state legislatures only convene once every two years for such issues, it would be all-but impossible for them to pull this off within the prescribed time period without numerous special sessions. Since the negative repercussions of these decisions are typically not fully known for years afterward, this too would be a non-solution. Add to it that having this unworkable procedure technically available would short circuit healthy state nullification movements. The media would pound home that since there is a tool available to void court decisions in the constitution, any other way to do the same thing would be against the constitution.

Compare that to the elegance of the Localist Solution. The solution section on the judiciary in Localism, A Philosophy of Government is about two pages long (though many pages in other chapters outline the problem well). Yet in those two pages lies, in my opinion, an exponentially superior solution to the problem Levin describes. 

First, the federal judiciary is only allowed judicial review for federal law, not state laws and practices as regards a state's own citizens, except as those laws and practices impact the ability of citizens to leave a state or keep ownership of their property within it. Even in such cases, a permanent federal judiciary is not used. Whenever the Federal government takes a state to court, the judges which are to decide the controversy are drawn from a rotating panel of state judges selected by Governors for a two year period. The federal judges only decide controversies between the states, not between a state or states and the federal government.

In addition, while the advice and consent of the federal Senate would still be required, the President cannot nominate anyone they might choose, but rather each Governor can nominate one person and the President must choose from that list. But what if one of the Governors is simply a tool of the President of his party? 

The integrated approach of Localism addresses that too, in another chapter. By law, political parties who work to elect candidates for federal office must be separate organizations, with different officers, than those who work to elect candidates for state and local offices. No state executive would be an official of the same party that the president was in. At most, they could be a rank-and-file member. That, plus insisting on run-off voting for all offices will break the back of the two-party duopoly that has taken turns driving this nation into fiscal and moral ruin.

Limiting the ability of the federal judges to meddle in the affairs of the states as it relates to their laws as applied to their own citizens is the real solution- not adding a clunky, unworkable process that with great effort tries to undo the inevitable over-reach one ruling at a time.   The down side?  State governments might do things that you or I don't approve of.    States will have more latitude than they do now to determine the limits of individual rights.   Some may be looser than some people would like, and some might be more restrictive than some people would like, but in no case would any portion of the population be required to stay there and live under those rules if they did not want to.  In addition, there is another important deterrent to the abuse of the freedom that localism offers state governments...

The localist solution to states treating their citizens unfairly is not to make FEDGOV the great arbiter, subjecting all states to its one viewpoint, but rather to subject governments everywhere to the free market.   Not only could citizens leave a state, but counties could change states, or a group of counties could leave a state and form their own state, provided a few parameters were met.    The knowledge that states could lose a region full of people they treated unfairly will induce them to tread lightly.   In addition, in a measure short of succession from a state, counties and cities could vote to lessen the penalties for violations of given state laws when arrests are made within their boundaries.

The last deterrent of localism for a state which will not behave as a constitutional republic is to expel that state from the union, and under localism there would be a framework for the other states, not the central government, to do so.  The only other option is sending in people with guns to try and force them to do it Washington's way.   This is expensive and counterproductive both at home and abroad.

Levin's "solutions" won't solve anything.   The fact is that we can either make the federal courts the one decider for the nation, and thus the effective rulers of our former republic, or we can structure our nation so that for almost all issues there is no one "decider" and let the free market punish and bring to heel those state governments which do not rule to the liking of those they are supposed to be serving.   Will more local mistakes be made if more freedom is allowed?  Perhaps, but such a system has built in course corrections.   When a national system makes such mistakes they are made for all, with no recourse short of revolution.

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