Media coverage of the Supreme Court is as shallow as the rest of “journalism.”. Everything is shown in terms of winners and losers between the red and blue teams. The three justices appointed by President Trump, with the advice of the Federalist Society, are working toward something far more critical. The decision in Dobbs overturning Roe is a tie rather than an outright victory for either side. However, detailed reporting takes more than 50 seconds and produces less venom.
Roe was a disastrous decision in many ways. The Founders had assumptions and goals when they set up the government. In the Federalist Papers, you see that branches of government would act to control each other because they would insist on keeping their authority and power.
The authors did not foresee the federal government becoming its current behemoth. They assumed a more prominent role for the state governments in a federal system.
Even so, the first article of the Constitution created the legislative branch. They saw this as the group that made policy through law-making and enforced its policies through the purse, appointment confirmations, treaty ratifications, and if needed, impeachments. As designed, states appointed Senators so the federal government couldn’t claim credit for brilliant ideas and make the states pay for them.
The House was to be accountable to the voters. Admittedly, that group became more encompassing and democratic over time. The idea is simple. Either reflect your voters’ views or, if needed, vote your conscience. If you do the latter and convince voters your decisions are appropriate, they send you back.
Allowing the public to change government officials peacefully is much better than leaving only a violent option.
The Founders assumed a certain degree of modesty in government officials and adult, accountable, and responsible behavior. Sadly, they were wrong.
The system allows for change. Decisions are made and can be changed by legislators elected by voters. Society’s views change over time. The laws change to reflect that. If Congress moves too fast or too slow, voters send a message by selecting new members of Congress. Also, in a federal system, states can move at different speeds. Prohibition was a big deal until it was given back to the states. Utah finally changed its laws when it wanted to host the 2002 Winter Olympics.
Lincoln’s government “of, by, and for the people” became unfashionable at the end of the nineteenth century. It was replaced by thought developed in Germany and popularized in the writings of Friedrich Nietzsche. This idea is briefly summarized in the article “Superman” in Britannica. They aren’t talking about the Superman from Krypton. His fans can relax.
“Superman” is a direct translation of the German Übermensch or “Over-man.”. It refers to a superior person or group of people who, by right, should have the actual authority to govern others. Nietzsche explained this in Also sprach Zarathustra, and George Bernard Shaw popularized it in Man and Superman.
This concept became popular in universities in the United States schools, including Johns Hopkins and Princeton, and in new academic fields, such as political science. One of its leading advocates was Hopkins graduate and Princeton President Woodrow Wilson. A related idea was developing the “administrative state” filled with experts who knew more about their subject matter than the voters could understand. The public is protected from its follies with an army of Übermenschen filling courts, bureaucracies, school boards, faculties, and legislatures.
These philosopher kings on the court became a Juristocracy or “government by judiciary.” Here is where Roe becomes a disaster. Abortion is an emotional issue. We had seen with alcohol that giving it back to the states defused it. States were moving at different speeds to change their laws. All the court had to do to follow the Constitutional plan was let them continue.
But Übermenschen can’t do that. Roe didn’t solve the problem. Instead, abortion has been the most contentious issue in our politics ever since. Arguably, no decision has damaged the judicial appointment process and respect for the court more than Roe.
So, what did the Dodd decision say? Despite all the screaming, it is not a complete victory for either side. It is an attempt to restore the status of abortion law before Roe, what the lawyers call status quo ante. That is, abortion law is now back in the hands of the states. We will see how long it takes to drain Roe’s poison and venom out of the system.
In another supreme court case that session called Loper, the court reversed the long-standing Chevron decision, which effectively gave the administrative state immense law-making powers. Again, this created a vast domain for the Übermenschen to rule essentially unchallenged and unchallengeable.
Letting the courts and bureaucrats rule works in two ways for the politicians. Many see the policies they want enacted and have an excuse of “I didn’t do it, and I can’t change it.” Catholic Democrats had a reason for abortion for years. Other politicians yell at an agency harming their constituents but end up with, “Sorry, I did what I could do.”
Judge Learned Hand’s comment about judges applies to all ruling groups. They ”must be expected to express the points of view of the class to which they belong rather than that of the whole community.”
The public can’t afford the cost of higher fuel from the net zero program and higher food from 30 by 30. These voting poor are frustrated and scared by the loss of jobs and the danger in their neighborhoods from immigration. The leaders who are better off can easily bear the costs of what Rob Henderson calls Luxury Beliefs and continue to push their agendas.
The system is at risk because the designed mechanism for political accountability is broken. That is why the new judges reversed Roe and the Chevron Doctrine. These are small steps to make all levels of our legislatures responsible for the laws and regulations that govern us
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