The Lonely Road Ahead for Principled Roberts reads the headline to the editorial by Noah Feldman. Go ahead and read it. You can come back to this article. I will wait….
Allow me to add a little background. I beg your indulgence for a short summary of civics.
We have three branches of government defined in our federal Constitution that are intended to act as checks and balances against the concentration of too much power in any one branch of government. This concept was unique and revolutionary when it was adopted and has governed and protected our country against the despotism that has often ruled in other parts of the world.
The Legislative branch is given the power to make law. That power is spread out among the power wielders for a reason. That power to make law has the greatest impact on the most citizens and the entire country and must, therefore, be spread out among a large number of people representing all the segments of the country. It may take much debate and time and energy and vetting to get laws passed, but that is the way it is purposely set up to avoid brash, sudden, unbalanced actions.
The Executive branch enforces the the law. They have the power of military and police force and the power to prosecute violators of the law. Many (most) countries that are unbalanced and oppressive have too much power concentrated in the executive branch of government.
The Judicial branch interprets and applies the law. The judicial branch takes no affirmative action, but waits for controversies to be brought to it that need to be decided. The hallmark of all three branches of government is self-restraint – staying true to the scope of power that is granted.
Another word for that is integrity. It can be summed up in the phrase, Rule of Law.
Rule of law is more necessary than ever in a democracy that has degenerated into partisan politics, partisan news reporting and an unending, wide and visceral stream of partisan voices that fill modern communication channels reaching far and wide. Rule of law has never been more necessary and important than in our modern world in which the restraints are straining to come off.
The editorial lauds and eulogizes conservative Justice Robert Kennedy and liberal Justice Felix Frankfurter. I say “conservative” and “liberal” because those were their respective backgrounds and bents, but both had integrity and ascribed to the rule of law. Both knew the important place of the judicial branch in the delicate order of democracy, american style, and both stayed true to their given authority.
That cannot be said for the majority of jurists. “Judicial legislation” threatens to unwind the fabric of american democracy that depends on a balance of powers. The Executive branch, too, has been expanding in that direction for years. President Obama is not the first president to make generous use of executive orders, flexing executive power beyond the established constraints.
The Legislative branch remains largely ineffective in its role of making the laws some would say. Some would say that the other branches of government have been forced to step into the breach and fill the gap left by an ineffective Legislative branch.
In this day of ultra-partisan politics, divisive social schisms and unprecedented, disparate cacophony in the modern voices that are more public and ubiquitous than in former days, the “ineffectual” Legislature is simply a reflection of that polarization. The Legislature is reflecting the character of our present society, as it is designed to do. We should not expect less, or more.
That Congress is continually lodged in stalemate by the polarizing voices of its constituency is a reflection of the whole of society. In that environment, then, enormous effort is required to “get things done”. While executive branches come and go, and as the judicial branch sits, waiting for the controversies to come for which interpretation and application of the law is the remedy, the legislative branch is the front line of a changing society.
But that is according to design. In such an environment of changing cultural sentimentalities. polarization should lead to stalemate. Societies are not conducive to moving fast without wind sheer, perhaps irreparable, from the forces of sudden change, change for which we are unready to accommodate without breakage.
If we are too polarized to come to consensus, then we should wait for consensus. If we have been unable to find the common ground, we should strive harder for the common ground. If we are too polarized to move, we should address the reasons for the polarization and work to minimize it rather than bulldoze one side under the other.
I fear damage to our system of government, itself. Take off the constraints, and the tensions that work to keep us in the air against the forces of human greed, lust for power and self-destructive tendencies will no longer be effective to fly this democratic flying fortress.
The narrow path is difficult but leads to the destination for which we journey. Constraint and self-restrain keep us on the path that has been given us, that has worked to create the most effectual democracy in the history of the world, the freest nation of high achievers who are empowered, not burdened, by those who govern. I fear we are on a widening road to destruction, refusing to be bound by restraints that are intended to protect us against ourselves.