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Friday, March 04, 2005

Imposing foreign standards of 'cruel and unusual' violates republicanism

If adversion to international standards could be tenable anywhere in Constitutional law, it would be in locating standards of "cruel and unusual punishment," as the Court just did in rejecting the death penalty for minors. Unless one wants to question judicial review itself, the Constitution leaves it to the Court to locate the boundaries of what must be deemed cruel and unusual. So why not look to what is unusual around the globe, or in other advanced countries, rather than to what is unusual as We the People understand it? Because adversion to international standards of decency and law is a betrayal of the fundamental principle of republicanism: that the people are sovereign. The Court cannot set aside national sovereignty. This is not just an ideal. This is a constitutional requirement.

One of the Supreme Court's greatest failures is its failure to enforce the guarantee to the states that they shall have a republican form of government. Since the states are under the federal government, this gurarantee requires that the federal government must also abide by the fundamental principles of republicanism. The Supreme Court has a number of times now recognized and accepted Alexander Hamilton's statement that “the true principle of republicanism" is "that the people should choose whom they please to govern them.” (Hamilton, 2 Debates on the Federal Constitution, p.257, J. Elliot ed. 1876, cited by the Supreme Court in Powell v. McCormack, 395 U. S. 486, 541 (1973), and in U. S. Term Limits v. Thornton, 514 U. S. 779, 795 (1995)). In other words, the Court has accepted that the fundamental principle of republicanism is the sovereignty of the people. The laws come from the people, and the Constitution comes from the people's understanding of the natural right (in particular, the natural right to liberty), and of how most effectively to protect natural rights (through the separation of powers, etcetera). Thus we come to the second meaning of republicanism, as understood by the Adamses: that republicanism is the system of liberty under law.

While the Supreme Court has recognized that the sovereignty of the people is the fundamental principle of republicanism, it has mistakenly found this protection to be non-justiciable on the grounds that questions of republicanism inherently involve conflict with the other branches of government in areas where the Court is called upon to defer. This was true in the particular cases which formed the Court's Article IV, section 4 jurisprudence, but it is not true in general. Formative cases either proposed republican requirements that were not really republican requirements, or instead of just trying to overturn unrepublican laws, they also tried to nullify actions already taken by other branches of government under those laws. For instance, instead of just trying to overturn an unrepublican election law, formative suits tried to overturn the executive's certification of election results.

These deficiencies are all remediable. Unambiguously necessary republican principles can be asserted in cases that only try to strike down laws, not invalidate actions already taken under the challenged laws. On very careful reading of the case record, the Court did leave this possibility open, though it did not acknowledge this gap in its dismissal of the guarantee clause. With the correct case, and an accurate reading of precedent, guarantee clause claims should succeed. (To see where the door is left open, see my lawsuit against the State of California over its unrepublican election laws. Scroll down to Part II.)

Unrepublican adversion to foreign legal standards is only one recent consequence of the Court's failure to enforce the republican guarantee. Another is the issue of free speech rights and academic freedom for fifth-columnists like University of Colorado professor Ward Churchill, with his championing of the terrorist attacks on America. The fact that Churchill is a public employee would make firing him a government act, which raises the possibility that firing would violate Churchill's free speech rights. But the much larger issue is the fact that the very institution of public education, at any level, violates the fundamental principle of republicanism: that the ultimate power to decide what is to be judged right or wrong resides with the people. With public education, the government presumes to tell the people how they should judge, overturning the proper master/servant relation between the people and the government. Ideally, all education should be private. If there are externalities to education, creating a market imperfection that calls for government intervention, the correct intervention is in the form of subsidization, not socialization.

We already blew that. We have granted government this vast unrepublican power to tell the people how they should think. If we don't fix that, any solution is a compromise. Of course there are dangers in giving the people control over public universities. Public universities should not exist! But in this situation of compromise, the question is which is the greater violation: to have public universities that are under the control of the people, or to have an unaccountable government power telling the people what to think? Clearly an improper role of government allowed without accountability to the people is worse than an improper government role of government with accountability to the people. The whole issue of tenure really isn't a free speech issue at all. It is a republicanism issue, and it comes out exactly the opposite way than the speech issue points, but we get the issue wrong because the Court has failed to ever adjudicate a single guarantee clause claim! Because of the Court's failure, we are completely blind to what is really at stake.

The republican guarantee is a central pillar of our constitutional structure, but one that the Supreme Court kicked out from under us long ago. We have been hobbling along ever since. If we don't want to collapse into an Anthony Kennedy-esque pile of mush, we need to get the guarantee clause properly adjudicated.

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