A Return to Constitutional and Political Normalcy?

The Supreme Court in Washington, on Oct. 12, 2020. (Samuel Corum/Getty Images)

Commentary

The United States was already waging political war in what has been called the most consequential election in our lifetime—and, by some, even the most important election in American history.

Then came the event that so many of us feared—the death of Ruth Bader Ginsburg in the last months of a divisive presidential election.

Then the rhetoric got even hotter with loud claims that replacing this justice was going to change American life for generations to come.

The rhetoric is as heated as we have ever seen, and some of it is justified. It really does matter who is president and who is on the Supreme Court. Donald Trump’s vision for America and that of the liberal Democrats backing Biden are fundamentally opposed to one another.

Amy Coney Barrett’s replacement of Ruth Bader Ginsburg will change the court fundamentally because her understanding of what it means to be a judge is fundamentally different from her predecessor’s.

However, there are truths lying beneath the surface of our heated rhetoric that should be considered with a dispassionate mindset.

Straying From the Vision

First, the very fact that we all understand how vital the outcome of this presidential election is and how important it is who’s on the Supreme Court shows us how far we have strayed from the Founder’s vision. Neither the presidency nor the Supreme Court were to have such exaggerated influence over American public life.

The president was to be the chief executive, by definition, charged with executing the laws passed by our representatives in Congress. The court was to be, in the words of Alexander Hamilton, “the least dangerous branch,” having neither power nor will but only “judgment.”

Over the years, we’ve centralized massive amounts of power and influence into the executive branch of government, well beyond what even the most pro-executive of the founders could have hoped for. Where our government was to be centralized in our representatives assembled in Congress, so much of our public life is now controlled by the person in the White House.

Agree with his decisions or not, President Trump, in just four years, has upturned U.S. policy with regard to tariffs and trade; changed our policies with regard to the wars in Syria, Afghanistan, and Iraq, and our relationship with our allies in Europe; killed a leader of a foreign government; taken us to the brink of a potential nuclear war with North Korea; changed U.S. immigration policy; and overseen a pandemic.

And, with the help of today’s Master of the Senate, Mitch McConnell, the president has used his authority to put more than 200 judges on the federal courts and appoint one third of the total members of the U.S. Supreme Court. President Trump, quite simply, has transformed our legal landscape for a generation. This accomplishment, unlike the ones mentioned earlier, was perfectly in keeping with the American founding.

Despite the howls from Sen. Chuck Schumer (D-N.Y.) and others on the left that replacing Justice Ginsburg during a presidential campaign was improper and unconstitutional, the Constitution is clear that the president’s power to nominate and the Senate’s power to give advice and consent don’t end with election seasons.

Too Much Power

Despite the clear constitutionality of the president’s nomination of Justice Barret and of the Senate’s plain authority to give its advice and consent, the celebrations on the right and the lamentations on the left point to how out of whack our constitutional order has become with regards to the place of the judiciary within the system.

Coming out of the Constitutional Convention, for instance, it wasn’t even clear that the Supreme Court would have its celebrated power of “judicial review.” Giving unelected, life-tenured judges the chance to overrule our elected officials was a power our founder’s understood would be dangerously subject to abuse.

It was only with Marbury v. Madison in 1803 that the court asserted the power of judicial review, and then the court in the 20th century aggressively asserted that power to overturn laws passed by Congress and freely elected state legislatures.

Because the power was being asserted by liberal justices on behalf of achieving progressive policy aims, the left made aggressive judicial activism the cornerstone of their political efforts. This is why they understand Trump’s new judges as mortal threats to their non-democratically achieved policy accomplishments.

To the degree that our justices return to “originalism,” they'll be returning to the original understanding of our constitutional order and the limited role our founders would have conceived for non-elected judges in our public life.

Revisiting Our Foundations

No matter who wins the presidency on Nov. 3, it’s also time we start to revisit the centrality of the presidency in American public life.

The modern presidency, with its ability to unilaterally change public policy and take the nation to war on its own, was born with the progressive movement of the early 20th century and solidified with FDR during the Great Depression and the united effort to fight World War II and then the Cold War. Conservatives followed liberals into embracing unilateral presidential power when Republicans had power, and now both sides are all in for presidential power when their candidate wins.

Our founding vision was one of a republic based in representation centered in our state legislatures and in Congress with a limited judiciary who stepped in only when laws were clearly unconstitutional. Presidents were not to drive the agenda and unilaterally change policy or start wars.

It’s time that both sides of the great American divide of the 21st century revisit our founding vision and recommit ourselves to a limited republic centered in representative legislatures. Only then will presidential elections not feel like “the most consequential in our lifetime” and judicial appointments not be feared as harboring the end to all progress in American public life.

Gary L. Gregg is host of the Vital Remnants podcast and editor of Reflection and Choice: The Federalists, the Anti-Federalists and the Debate that Defined America.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.