Slouching Towards Gomorrah (20 page)

The matter is not that easy. The power to make “Exceptions” is probably a housekeeping power, a power to control the appellate jurisdiction in the interest of efficiency and convenience as circumstances change. It was certainly not a power to assert democratic supremacy over the judiciary. That can be seen from the results that would follow from making exceptions to the Supreme Courts jurisdiction. If Congress deprived the Court of jurisdiction over abortion cases, for example, those cases would simply be decided by state courts, and neither Congress nor the state legislatures could remove that jurisdiction. Article VI states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Two things follow. Article VI thus lodges jurisdiction to decide federal constitutional issues in state courts, and there is no power in any legislature to make exceptions. The framers almost certainly did not intend that the exceptions power be used to control the Supreme Court. If they had so intended, they would not have devised a scheme that, instead of restoring democratic authority, merely shifted final disposition of issues to another set of judges. It is not at all certain, therefore, that the Court would acquiesce in the removal of its jurisdiction. If it ruled the statute making an exception to its jurisdiction unconstitutional, that would be the end of the matter.

But even if the Court accepted the statute, the fact that the
Constitution places jurisdiction to decide constitutional questions in the state courts would frustrate the congressional purpose. The state courts, at least most of them, would certainly follow existing Supreme Court precedent. A few years back, when there was considerable talk of taking away Supreme Court jurisdiction, the conference of state Chief Justices unanimously adopted a resolution promising to adhere to the Supreme Court’s past rulings. Any plan to curb the judiciary by first removing the jurisdiction of the lower federal courts and the Supreme Court and then bullying the state courts is too extravagant to be contemplated.

There appears to be only one means by which the federal courts, including the Supreme Court, can be brought back to constitutional legitimacy. That would be a constitutional amendment making any federal or state court decision subject to being overruled by a majority vote of each House of Congress. The mere suggestion of such a remedy is certain to bring down cries that this would endanger our freedoms. To the contrary, as already noted, it is the courts that are not merely endangering our freedoms but actually depriving us of them, particularly our most precious freedom, the freedom to govern ourselves democratically unless the Constitution actually says otherwise. The United Kingdom has devloped and retained freedom without judicial review.

Consider what the effects of such an amendment would be. This is a civilized nation; there is no reason to suppose that the citizens of some benighted town would suddenly become fascists and return to a regime of racial segregation. The Court would strike down any such laws and Congress would support the Court. What might be in danger would be the Court’s cultural drive to the left. There is no reason to suppose that representatives and senators would be skilled interpreters of the Constitution, but then the Court isn’t either…or rather chooses not to be. If constitutional jurisprudence remained a mess, at least it would be a mess arrived at democratically. There is no reason to regard this proposal as at odds with constitutionalism. When Congress proposed the original Constitution and the various amendments, it did so by laying them before the states for democratic decision. The Supreme Court changes the Constitution without any such ratifying process. The clearest equivalent would be laying judicial changes of the Constitution before Congress for ratification or rejection.

It will be said that this suggestion is “extremist.” I think not. It is part of a long tradition of seeking ways to tame judicial power so that it achieves democratic legitimacy. Robert LaFollette, if I recall correctly, proposed amending the Constitution to allow the Senate by a two-thirds vote to override Supreme Court decisions. Learned Hand, considered to be America’s premier appellate judge, was nearly apoplectic at the Supreme Court of his day. In 1914, Hand wrote to Felix Frankfurter denouncing “the fatuous floundering of the Supreme Court which goes by the name of Constitutional Law. Am I perverted that I alone of those who touch it have acquired such a contempt for the subject? I can scarcely think of a matter to which the human mind has been applied with less credit to itself than that.” He referred to the Court and its constitutional rulings as “that solemn farce.”
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The Court legislated, as it does today, through the due process clauses of the Fifth and Fourteenth Amendments. (The potential for judicial legislation through the equal protection clause had not yet been discovered.) Hand ultimately came to the conclusion that these clauses should be repealed, certainly an “extreme” position, then as now. Gerald Gunther, from whose biography of Hand I have been quoting, summarized Hand’s view on judicial power in a democracy:

Hand was speaking of a Court that was then activist in conservative causes. There is no reason to suppose that he would have been kinder to later Courts whose “fatuous floundering” was in the service of modern liberal causes. Perhaps the real lesson to be
derived from both the conservative and modern liberal eras is that judges cannot be trusted with a written constitution and an unlimited and uncheckable power of judicial review Most men and women, given final power, will prove unable to subordinate their personal sympathies and passions to the legitimate range of meanings that a dispassionate mind can find in the Constitution.

The Court is obviously not responsible for all that has gone wrong in our culture, but it is responsible in no small measure. Some of its results are described in the following chapters. Those results include the declining legitimacy of democratic institutions, the promotion of anarchy and license in the moral order, and advancing tyranny in the social order. The upshot is that the democratic nation is helpless before an antidemocratic, indeed a despotic, judiciary. The American people seem, at the moment, to be submissive and without the political will to reclaim the liberty that is rightfully theirs.

P
ART
II

7

T
he distance and direction popular culture has travelled in less than one lifetime is shown by the contrast between best-selling records. A performer of the 1930s hit “The Way You Look Tonight” sang these words to romantic music:

In our time, Snoop Doggy Dogg’s song “Horny” proclaims to “music” without melody:

Then there is Nine Inch Nails’ song, “Big Man with a Gun.” Even the expurgated version published by the
Washington Post
gives some idea of how rapidly popular culture is sinking into barbarism:

The obscenity of thought and word is staggering, but also notable is the deliberate rejection of any attempt to achieve artistic distinction or even mediocrity. The music is generally little more than noise with a beat, the singing is an unmelodic chant, the lyrics often range from the perverse to the mercifully unintelligible. It is difficult to convey just how debased rap is. Not even printing the words adequately expresses that. There have, however, been some noteworthy attempts to get the point across. The music industry, Michael Bywater writes as part of an extended piece of masterful vituperation, “has somehow reduced humanity’s greatest achievement—a near-universal language of pure transcendence—into a knuckle-dragging sub-pidgin of grunts and snarls, capable of fully expressing only the more pointless forms of violence and the more brutal forms of sex.” He contrasts this with the remarkably subtle and emotionally precise popular music of only a few decades ago: “If Bach is the sound of God thinking, then perhaps Gershwin is, at least, the sound of St. Anthony of Padua whistling as he works.”
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The difference between the music produced by Tin Pan Alley and rap is so stark that it is misleading to call them both music. Rock and rap are utterly impoverished by comparison with swing or jazz or any pre-World War II music, impoverished emotionally, aesthetically, and intellectually. Rap is simply unable to express tenderness, gentleness, or love. Neither rock nor rap can begin to approach the complicated melodies of George Gershwin, Irving Berlin, or Cole Porter. Nor do their lyrics display any of the wit of Ira Gershwin, Porter, Fats Waller, or Johnny Mercer. The bands that play this music lack even a trace of the musicianship of the bands led by Benny Goodman, Duke Ellington, and many others of that era.