Senator Weinberg's Question

Some time ago, SenatorWeinberg, patting herself on the back for keeping Phil Kwon and Bruce Harris off the SCONJ, wrote:

"We turned down the two inappropriate Supreme Court nominees put forth by the Governor. What do you think would have happened to the Affordable Housing (COAH) case if either of them had been on the court?"

Perhaps unsurprisingly, this represents a fundamental misunderstanding of what judges do. But, then again, leftists don’t see courts as adjudicative bodies; they see them as instruments to impose policy, as politicians in black robes. Give her credit: Senator Weinberg couldn’t have been more forthright, that she wants politicians – well, her kind of politicians – on the Court:

"The balance on the Supreme Court should be important to all of us. With issues like school funding, women's health, affordable housing, marriage equality, and tax policy, that is particularly important to our progressive community."

One doesn’t even need to read between the lines: "progressive" judges will arrive at the "correct" result, whereas conservatives might permit pesky details, like the text and history of the document to influence their decisions.

Unfortunately, vis a vis progressives, the good Senator is correct: they DON’T permit trivialities like the appropriate role of a judge to stand between them and effecting "desirable" social policy. Consider Obamacare. Much discussion occurred about whether one of the so-called conservative judges might vote to uphold it, but there was never even so much as the slightest doubt that the four political liberals would march in lockstep. And they did. There is nothing so predictable as Justice Breyer’s vote: find out what progressive ideology considers a good result, and that’s the way he’ll come out.

Just so, Senator Weinberg clearly wants justices who will arrive at the "right" result on cases when she believes passionately in the policy.

But, query: do we REALLY want judges involved overmuch in "tax policy" or "women’s health"? Should judges be making "affordable housing" policy or taking it upon themselves to redefine marriage? Once one concedes that judges possess power in such areas, one surrenders the right to bellyache if said judges arrive at conclusions to which one objects. Endowing judges with the authority to impose their whim upon the citizenry presents the severe risk that they will arrive at a policy which diverges from one’s own.

Which, perhaps, explains Senator Weinberg’s deep concern about the possibility that someone who disagrees with her politically will be confirmed. Perhaps she fails to understand that political conservatives view the judicial role very differently from progressives. An example, from her own writing, above.

The decisions in Mt Laurel and its progeny are problematic in the extreme. Our NJ Constitution provides:

"The Legislature may enact general laws under which municipalities, other than counties, may adopt zoning ordinances limiting and restricting to specified districts and regulating therein, buildings and structures, according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land, and the exercise of such authority shall be deemed to be within the police power of the State. Such laws shall be subject to repeal or alteration by the Legislature."

From this pithy language, the Court discovered (a) that to be valid, a zoning Ordinance must be consistent with the public welfare and (b) it falls to the judiciary to determine what policy advances the public welfare.

Note the language of the Constitution, entrusting zoning matters to the Legislature. The Court never found that any zoning ordinance violated the Municipal Land Use Law. Instead, it engrafted onto that language an affirmative duty to provide for low income housing, and arrogated to itself the right to determine the precise scope of a municipality’s obligation. In short, Mt. Laurel represented a huge power grab, in which the judiciary simply asserted that it, and not the Legislature, enjoyed the right to make policy calls in this area.

Clearly, Senator Weinberg LIKES that decision; she apparently doesn’t mind an assault on legislative prerogative in the service of arriving at "progressive" results. The "how" doesn’t matter so much as the policy itself.

But the question Senator Weinberg posed is different: how would a judge who actually pays attention to the Constitution, and cares about the judicial role, have voted on Governor Christie’s attempt to inter COAH? Framed differently, faced with a gubernatorial assault on legislative prerogative, rather than one from the judiciary, Senator Weinberg suddenly advocates for the dignity and power of the Legislature. It’s hard to escape the conclusion that she simply doesn’t care about process, provided she likes the result.

Let’s get personal: ridding the state of COAH and the entire edifice of "affordable housing" guarantees strikes this legislator as wonderful policy. And, as above, the entire Mt. Laurel doctrine rests upon absurdly shaky constitutional footing. But if the LEGISLATURE adopts a policy, included in a statute, which establishes an agency or imposes a policy upon municipalities, that presents a very different question. While the judiciary lacks the legitimate authority to impose its whim upon the populace, that’s why they pay legislators the big bucks.

Although it apparently comes as a surprise to progressives, political conservatives, on the judiciary, are quite capable of doing something progressives apparently find incomprehensible: arriving at a decision with which they profoundly, personally, disagree, because the constitution compels it. (John Roberts, call your office)

So, in answer to Senator Weinberg’s (rhetorical) question, had either of the two nominees to the SCONJ – to the extent that either was a conservative – been confirmed and heard the COAH case, they would have arrived at the result the statute and the constitution compelled, not the policy determination they might have personally preferred. That’s how judges are supposed to act.

Improving the Constitution

Today’s Times presents an interesting exercise in alternative history – wholly unrelated to the alternative history that tends to find its way into their editorials as a matter or course. The question posed, most to professors, runs: if you could offer just one suggestion about how the Constitution might be improved, what would it be?

One respondent advocated for the abolition of the electoral college; yawn. That’s so 2000, and it that hoary institution protected the country from Al Gore, we should fall on our knees every night in gratitude. Of the problems facing this country, the electoral college ranks extraordinarily low on the to-do list.

Predictably, another favored abolishing the Second Amendment, concerned about its impact upon blacks. She’d be better served worrying about single parenthood as a threat to black kids. Besides, while the body count is unacceptably high, for truly industrial scale murder, only a government with a monopoly on firepower will suffice. No sane individual would run that risk. As that noted conservative clinger, HH Humphrey once said,

"the right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against tyranny which now appears remote in America, but which historically has proved to be always possible."

Other commentators played around the edges: term limits for federal judges, allow naturalized citizens to be President, better define "cruel and unusual", revise the amendment process.

And some dealt with real substance. Randy Barnett urged a revision to the Commerce Clause to check federal overreach, a good idea. Another advocated for greater state power, another great idea. Still another advocated for a greater role for international treaties in American law, which is either already the law or a sneaky way to evade American tradition. And, finally, one commentator urged a more poetic First Amendment which – this IS The Times – excludes political speech by groups of people called "corporations" from its protections.

The greatest threat to America’s future, though, lies not in whether Arnold Schwatzenegger might qualify for the Presidency or the tenure of federal judges, but with the ever increasing size and scope of the federal government, especially via entitlement spending. As sages noted over the years, a democracy is doomed once the people figure out that they can vote themselves other people’s money. The Democratic Party bases its entire electoral strategy upon encouraging that pernicious tendency, unapologetically promising to take the earnings of A and give them to B, all in return for B’s vote. As GB Shaw once observed: "A government which robs Peter to pay Paul can always depend on the support of Paul."

Increasingly, we’re become a nation of Pauls: folks who don’t pay taxes and live off of the earnings of others. Folks who treat the taxpayers as their baby-daddies, who think nothing of sticking their hands into their neighbors’ pockets. This represents a profound threat, both to freedom and to prosperity.

And don’t think it’s just the poor; one need look for further than the recent farm bill to conclude that while food stamps might be unwarranted welfare, so, too, are massive price supports and subsidies, and the "need" for same is even more problematic.

So, I suggest a modest proposal, along the lives of the following:

"Congress shall expend no funds: (a) on gifts to any foreign nation; (b) on gifts to any state, or any subdivision thereof; (c) on payments to any individual or entity, except in compensation for services rendered or goods provided pursuant to a valid contract entered into prior to the provision of said goods or services; (d) except in payment for property taken pursuant to the Fifth Amendment; or (e) except in payment for wrongful actions taken by governmental employs, pursuant to such standards as Congress may determine."

The left purports to object to Citizen’s United on the grounds that money in politics perverts elections. In a sense, they’re right: promising a segment of the electorate other people’s money represents the epitome of corruption. Under this proposal, that would stop. No longer would people expect to personally profit from their votes.

Of course, this restriction only applies to the federal government; the states would still be free to advance such social welfare policies as their people deem appropriate. So, for instance, people who like the MA health care experiment would be free to move there, or to importune their local legislators to adopt a similar program, leaving those in more freedom-loving states free from the expense.

Some comments to the site advocate for even more significant process reforms, such as the abolition of state representation in the Senate. But the problem with American government today is not that it’s insufficiently democratic, but that it’s insufficiently pro-freedom. Certain things are simply beyond the legitimate reach of government; this proposal would ensure that the distribution of one’s income is among those off-limits items.