It’s well past time the term kritarchy percolated into the public consciousness. It means rule by judges, and bears a lineage descending from ancient Israel. Thus making it particularly apt given the ethnic composition of the Court. Western civilization suffers no deficit of hurdles to its survival, though from a purely civics perspective I think few exceed the JQ: the judiciary question.
It was never anyone’s intent to fashion a government whereby preening goofballs in western Washington are granted the power to compel immigration officials to stand down across the country because Our Constitution requires Muslim saturation. That the actual source of this country’s alleged self-rule has never approved of this inflow is deemed wholly irrelevant. As we’ve noted here many times, the American people have again and again been the unwilling passengers of a power-drunk court. As a result of this judicial fiat (and federal bayonets) liberal anti-society has been shoved forward to full cultural preeminence, rather than growing mold naturally on a pierced, purple-haired corpse.
All of this long train of abuses, to borrow from the guy engraved on nickels, results from the doctrine of judicial review. This being a bald usurpation of the separation of powers granted to the court–by the court–in Marbury v. Madison. That decision should have prompted President Jefferson to burn the Supreme Court to the ground and toss its pretentious occupants into the Potomac. Instead the decision was allowed to stand, and the Kritarchy took its first wobbly steps.
By some accounts Jefferson was even more intellectually endowed than Ashley Judd, and so accurately estimated the eventual harvest from what had just been sown.
The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.
The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
If this opinion be sound, then indeed is our Constitution a complete act of suicide. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow… The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.
This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.
I hope you’ll spare the time to absorb those remarks. And how every one of his fears have come to blossom in the rich soil of man’s self-importance.
Of course that brings us back to Trump, a bow-tie, and a pompous panel of Ninth Circuit philosopher kings. I read the 29 page opinion and marveled at several elements. For one, the assertion that Washington state suffered “irreparable” damage through a temporary curtailment of Maghrebi squatters. This in contrast to the apparently ephemeral nature of Americans being colonized, parasitized, and perforated by them. I also enjoyed this piece of rationalization:
To the contrary, while counseling deference to the national security determinations of the political branches, the Supreme Court has made clear that the Government’s “authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war.
Haha. The Supreme Court has made clear that the Supreme Court will determine who may do what. Well the people are grateful for the court’s benign gesture of clarity. And you will also notice the rote “counseling of deference” to the political branches on occasions of political matters. This being counsel the court always offers itself, but never actually heeds.
All of which leaves me bitterly relieved that Trump has apparently decided to withdraw his order rather than pursue it to the highest star chamber.
Relieved because he was going to lose. Not from the frailty of his constitutional position, but because the Constitution had no role. He needed five out of eight votes to overturn. He didn’t have them. And no words written by either his solicitor or James Madison was going to provide them. The law has nothing to do with it.
And certain rejection was the upside. It is completely conceivable that a five leftist majority (Ginsburg, Kennedy, Breyer, Kagan, and Wise Lat) would have taken this succulent opportunity to add another glowing chapter to the Court’s history of landmark legislation. So imagine if this majority colluded to remake immigration law from the roots, just as it recently did the ancient institution of marriage. Borders place an undue burden on the free movement of peoples, and at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. As a result, we find immigration restriction to be unconstitutional. I assure you, there would be no deficit of gall or rhetorical gas to drive the decision.
Under that plausible scenario, Trump would not only be rejected, but put in the highly uncomfortable position of being told his entire campaign platform is now illegal. And that’s where the bitter part of my sentiment begins. Because such a ruling with such a president just might be sufficient to instigate the constitutional crisis that has frankly been long overdue.
Politicians must pay their constituents lip service before betraying them. Their campaign promises are thus another compliment vice pays to virtue. Courts are under no such obligation. Their edicts are not responsive to popular appeal, and can not be replaced by popular vote. Their rule reduces a free and sovereign people to mere litigants.
A kritarchy is not the antithesis of republican government, but it is far on the opposite pole. It is a form of rule that was never ratified by any parties but those on the court itself. As a result it carries all the moral heft of titles self-bestowed by an African dictator.