The Abuse of Power

Over at Jacks BlogRandom thoughts- Do they have meaning? there has been a debate going on in regards to comments made by Supreme Court Justice Antonin Scalia supporting a so called originalist position in interpreting the US Constitution. In recent comments to the media, Scalia defended his long-held belief in sticking to the plain text of the Constitution “as it was originally written and intended.”Though it is not relevant to the point I am making below Scalia also called his opponents “Idiots” something most Bloggers won’t even allow.

Some readers came out in support of this approach particularly XYBA who did state a legitimate point that some parties (not just governmental) “want to reinterpret what is already written in the light of expediency rather that as it was intended.”

Though it is not really my place to comment on US internal matters I responded with a long held position of my own. Before you read on please do not assume I am comparing the Bush administration to Hitler and Nazi Germany I AM NOT, as I mention I only use it as a worst case scenario when checks on power fail, or are removed. See My reply to Xyba below.

I wrote;

Xyba, If, as you say, “They want to reinterpret what is already written in the light of expediency rather that as it was intended,” and they are Judges of the court, then they have this right. As I mentioned Article III (of the constitution) gives The courts power of judicial review. Only an amendment to the constitution can take that away.

The Conservative party of Canada has the same beef with our judicial system for much the same reason.

In saying there is only one way to interpret the constitution then we limit judicial review if not creating the path to abolishing it.

In removing the concept of Judicial review from government then we lose another check on government.

What makes your system and ours successful is their ability to prevent abuse of power. If a party is to interpret the constitution in any manner they like, the tendency to interpret along party lines is too great, and centralizing power in one party historically had horrific results. Without a check on this, such as judicial review, you are one step closer to an oligarchy rather than a democracy.

This does not mean the document as written is being protected by the court, and therefore not a living document, on the contrary it begins the process leading to an amendment to address any misinterpretation by the court which the government, as elected by the people, sees as inconsistent with the constitution that being what currently constitutes the nation.

A check such as this works many ways and protects the people from abuse of power by any part of government, the courts or the congress or even the President.

The first thing Hitler did was to remove checks on his power with the enabling act he removed the constitutions authority over the Reich and placing power into the hands of his cabinet (one check removed) In January 1934 the Reichsrat, the upper house of the parliament, was abolished. (another check removed) In May 1933, the Nazis ordered the abolition of the independent labour unions(another check). During the spring of 1933, the Nazis moved to eliminate opposition political parties. In July, the Nazi Party became the only legal party.(yet another check)Following the death of President Hindenburg, Hitler abolished the office of president and assumed the president’s powers.(no more checks)

This is not meant as a comparison but to show the importance of a system that has checks on the abuse of power, as well as the danger of allowing these checks to be removed.


3 thoughts on “The Abuse of Power

  1. I don’t think judicial review requires an expansive interpretation of the Constitution.

    It’s true that the court provides a check on state power. But the real check is the Constitution itself; the court’s role is to ensure that Government acts only within its constitutional powers.

    Scalia’s position would permit the court to play that role, but within a narrower scope.

    That said, I agree with your position. I like the concept of a Constitution as a “living tree”, because the process of amending the Constitution — especially in Canada — is so difficult, and governments are so timid.

    The very fact that courts are not democratically accountable enables them to decisions that may lack majority support from the population (e.g. with respect to the legalization of same sex marriage).

    The trick then becomes to provide some checks on the power of the courts. If the courts use an expansive, “living tree” approach, and they are not accountable either to the electorate or to Congress/Parliament, what is to prevent them from abusing their authority?

    Among Canada’s justices, I was rather alarmed by l’Heureux-Dubé. She made legal decisions (e.g. with respect to spousal support) based on social-science research rather than law. And let’s face it, social-science research is sometimes nothing more than the flavour of the month.

    In Canada, the notwithstanding clause potentially functions as a check on the court’s powers. Yes, politicians would face political consequences if they decided to use it. That’s a good thing: it means they won’t use it willy-nilly. But it’s still good to have it there, to remind the courts that their power is not absolute.

  2. Bill (and Q), the problem IMHO occurs when judicial activists ignore the written constitution and contruct new legal theories that conflict with established law. [No, I’m not going to cite any examples here. Just delete this comment if you can’t imagine that has already occurred].

    Justices’ motives may possibly be as pure as driven snow, but by twisting and parsing the law so much they permit legislators to avoid doing their duty and to not make tough, societal changing decisions. That this has already happened in the US has fundamentally changed the very nature of our legislation. It has probably done the same in CA.

    This is where the US is now. About 10% of elected officials are worth something; the rest have become a scurge upon the land. They now know they can successfully avoid making tough calls, relying on activist judges to do it for them instead, thus they simply ‘ride the boat’ and enjoy the scenery.

    And the electorate is too blind to recognize it ot too lazy to change it.

    Maybe Justice Scalia’s descriptive phrase is more apt than we would wish.

    And as an aside, I wondered, myself, where all the ‘idiots’ had gone. When I formerly commuted to work they seemed to surround me in traffic. Now that I’m retired, I don’t see them so much. Strange.


  3. 49erdweet : I agree, for the system to be effective all sides must do their respective parts.

    If as you say “[elected officials] can successfully avoid making tough calls, relying on activist judges to do it for them instead.”

    Then the check on power becomes useless.

    So what is the compromise position?

    BTW – Though I am still not impressed that a Justice would use the word Idiots to describe anyone – I have located the idiots they are no longer in the US Southwest they have moved to Ottawa Canada and can’t drive on snow.

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