The danger of Hostettler
In a column in yesterday's Palm Beach Post, George McEvoy wrote about what he calls the attempt by the right-wingers in Congress to denude the federal courts of their authority to determine what is Constitutional or not. These cases would, predictably, be largely about social issues--gay marriage, abortion, separation of church and state--and would then be decided by judges who, in many cases, are directly beholden to the electorate (and by extension, less independent as jurists). Say what you will about the ludicrous rhetorical gymnastics Antonin Scalia has to perform in order to get to some of the decisions he's authored over the years, his position as judge for life allows him the independence to make decisions that go against popular opinion. Sometimes this sucks, as in Bush v. Gore, but it also gave the Warren court the ability to make those landmark civil rights decisions that changed our country for the better in the sixties.
So here's what Hostettler said:
"When the courts make unconstitutional decisions, we should not enforce them. Federal courts have no army or navy... The court can opine, decide, talk about, sing, whatever it wants to do. We're not saying they can't do that. At the end of the day, we're saying the court can't enforce its opinions."
Lots of people over at the Daily Kos have gotten exercised about this, and have compared it to Andrew Jackson's alleged comment about Chief Justice John Marshall in Worcester v. Georgia: "George Marshall has made his decision; now let him enforce it." And much of the discussion over there has focused on this historical precedent.
But it seems to me that many of them are missing the larger point. Hostettler is trying to echo the argument of Thoreau's Civil Disobedience,
but if it is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law. Let your life be a counter-friction to stop the machine.but here's the problem: Thoreau was talking about acting as a private citizen standing in defiance to an unjust government. Hostettler is trying to use one branch of government to beat another branch into submission. He's actively working on legislation that would remove the federal judiciary from their Constitutionally mandated as overseers of what is and is not constitutional. He's not trying to stop the machine--he's trying to retune the machine to serve the whims of his constituency, a constituency that is trying to move us ever closer to theocracy.
I'm all for civil disobedience. It was the basis for those landmark Supreme Court rulings in the fifties and sixties. It raised public consciousness about issues that most people of the time would have been happier ignoring. But the people who defied the existing laws did so in the knowledge that they were risking jail time, the vengeful acts of a hostile populace, and quite often, retribution at the hands of local law enforcement groups. They knew going in that they might never have the backing of the government or of the courts, but they made their stand anyway.
Hostettler is talking about something different. He's suggesting that if a court makes a decision that the Congress disagrees with, the Congress can tell the court to go take a leap, that the Congress can assume the power of two of the three branches of government by fiat. That's what ought to scare Americans--the thought that a group of idealogues in Congress could conceivably turn the federal judiciary into a rubber-stamp for whatever they want to push through, simply by refusing to enforce the Court's decisions.