L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 327, July 10, 2005
Relegation Nation: An Idea for Reforming the Courts
Special to TLE
Conservatives and liberals alike are looking at Sandra Day O'Connor's retirement as a chance to mold the Supreme Court in their image. But if you ask me, both sides are missing the real opportunity here. This is more than a chance to change the court's ideological make-up. It's a chance to restructure the court completely. I'm talking about a total overhaul here. The way I see it, the court would be better if it ran like European soccer. But before I get to that, let me explain why.
The first week in June, the often-imitated, never-duplicated SCOTUS struck down state medical marijuana laws, saying, in the case of Raich v. Gonzalez, that federal anti-drug bans preceded them. This, of course, was in keeping with the Constitution's Interstate Commerce Clause. Or so they claimed. At the end of the month, though, the court pulled a rabbit out of its hat and magically struck a blow for states' rights. This time, in the case of Kelo v. New London, they ruled that the Fifth Amendment gives local governments the power to seize homes and sell the land to private developersthe idea being that local governments would know better than Washington whether seizures were needed to create tax revenue.
In light of Raich, the Kelo decision makes no sense. If the federal government has the right to regulate medical marijuana under the banner of interstate commerce, shouldn't they also have the jurisdiction to regulate eminent domain? If a town wants to kick someone out of their house to build strip malls and office parks, that sounds exactly like commerce to me. The fact that it's not interstate doesn't change this. Pot grown for noncommercial, in-state use isn't interstate, either. Hell, it's not even commerce.
Now, it would be easy to look at these cases and simply conclude the Supreme Court has no idea what it's doing. But it would be just as easy to conclude something more sinister: Namely, that they know exactly what they're doing, and it amounts to reducing us under absolute despotism. Perhaps the truth lies somewhere in between.
According to uscourts.gov: "The federal courts often are called the guardians of the Constitution because their rulings protect rights and liberties guaranteed by the Constitution." That's nice in theory, but federal judges are appointed for life. And by the time they're appointed, they're already so far removed from everyday people that it's silly to think they'll have any real sense of which "rights" aren't being protected. This is especially so with the Supreme Courtthe highest and most insular court in the land. Their role is to set precedents, but half the time, their precedent for setting precedents is to look at their own past precedents. Isn't that a pretty shallow way to run a country? It's like they're fulfilling their own prophecies or something. It's two steps down from divine rule.
We talk a lot about checks and balances in America. And we talk about the courts being broken, but we rarely talk about fixing them. People seem to think that, when we say checks and balances, we mean the separation of executive, legislative, and judicial powers. But Americans are not well served by this exclusive definition, because it obscures the separation of local, state, and federal powers. And without that kind of separation, the Supreme Court basically operates in a vacuum.
I won't sit here and tell you state governments are perfect little angels. They aren't. But back in the day, when states appointed senators, they had a voice in Washington. The Seventeenth Amendment changed that. States no longer have any recourse against federal abuses (what are they going to dosecede?); so for all intents and purposes, they're like federal satellite campuses now. Not only do they lack the power to protect medical marijuana smokers, but they're being empowered to bulldoze homes to build strip malls. In either case, checks and balances fail us. What good does it do us if homes are being bulldozed and the best we can say is, "Well, at least the President, Supreme Court, and Congress work in separate buildings"?
We don't really live in a democratic republic anymore. We live in a democracy. And democracies have their merits, make no mistake. But they also amount to mob rule. Politicians may be enjoying this now, when maintaining power is as easy as giving out money from the treasury. But they won't be enjoying it when Americans go marching through town square with the heads of Supreme Court justices on the ends of sharp sticks. I'm not saying that's the course Americans should take. They shouldn't. But that's what happens sometimes when leaders reduce people under absolute hooliganism.
For this reasonfor our sake, as well as Washington'sI say the courts need to work like European soccer.
In European soccer, there's a thing called relegation. What this means is, every year, the best teams in the lower divisions move up, while the worst teams in the higher divisions move down to take their place. I know it sounds like I'm being facetious, but I truly believe this system would work in the courts.
The justices on the Supreme Court have worked hard to get where they are, but now that they're there, they're there until they die or retire. This won't do. From now on, we should gather at the end of every year and vote on the justices who did the least to stop states from abusing individuals. And, likewise, state governments should vote on which justices did the least to stop the feds from abusing the states. Then the "winners" should be demoted through the ranks all the way down to the local courts, where they'll get lower pay, longer hours, and more grief from ordinary folks. And if they can't find a way to get promoted three years straight, we'll just assume they're tyrants and fire them altogether. And as a parting gift, we'll knock down their house to build an adult emporium. You know, to generate revenue.
I realize "abuse" is a subjective word, and the justices may have trouble figuring out the criteria in this system, but that seems about par for the course with these peopleI'm not worried about it. The only thing I haven't figured out yet is how to convince Americans to get excited for a low-scoring game... I mean, government....