Constitution Daily

Smart conversation from the National Constitution Center

Do we rely too heavily on the Supreme Court?

October 19, 2010 by Dr. Steve Frank


Publius 2.0 believes that it will take the wisdom of Solomon to decide the conflict of rights in the case recently argued before the Supreme Court involving military funerals and free-speech.

Should political speech that many find hateful be permitted at the sorrowful occasion of a soldier’s funeral? Personally, Publius 2.0 thinks that there is a time and a place for everything, and that even if a cemetery is an appropriate place to mount a protest, the moment when a soldier is being laid to rest is not the right time.

But Publius 2.0 also knows that in cases like this there are persuasive arguments on both sides, and he’s happy to have the Supreme Court decide. He’s persuaded by Alexander Hamilton in Federalist Number 78 that simple justice rests on a complex edifice of law filling a great many law books:

It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government.
A voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government

Hamilton can be so droll! He goes on to explain that the “inconvenience” of knowing the law is both a judge’s duty and what prevents the courts from acting arbitrarily to abridge individual liberty:

To avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them, and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire competent knowledge of them.

So today’s question is this: How do we separate the questions for which specialized judicial knowledge has the answers we seek from the political questions that we are better off – the “depravity of human nature” notwithstanding – deciding for ourselves?

Publius 2.0 is happy that the question of free-speech at funerals now rests with the nine smarties on the Supreme Court whose “laborious study” of the law has put them there. He’ll be less happy when the new health-care law lands on their bench.

Far better that voters in Arizona, Colorado and Oklahoma – however prone to “folly” they may be -- will decide that question for themselves, in ballot initiatives on Nov. 2. Is it really good for democracy when every policy difference that divides us becomes a constitutional donnybrook decided by the Supreme Court? Will that help us find better solutions, or only deepen our divisions?


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