Tuesday, April 12, 2011
What is a King without an Army?
I think there are many advantages to giving judges the power to declare acts of legislatures void. First, Judges (especially at the Supreme Court level) are very smart. This does not mean they do not have political or personal predilections, but generally they have to "reason" to the result the provide. As the history of the relationship between the judiciary and the legislature in the United States has unfolded, the Judiciary has taken a relatively deferential approach to legislative enactments. This is good. But beyond good, it was necessary for the courts to remain legitimate. The nine judges who make up the Supreme Court cannot "enforce" their rulings. If the Court pushes "activism" too far, it loses its legitimacy and it authority. The Court cannot enforce its ruling. They are kings and queens without armies. They must lead by reason and persuasion, not force. There is brilliance in this. It makes sense to put a "rational" check on the executive and legislative powers. This not only provides an outlet for the people to check the use of these powers, but the check is worthless if the people disagree.
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