Columns » Ernest Dumas

No independence


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Now that the spectacular musical "Hamilton" and a new book that hails him as the father of the U.S. economy have burnished the reputation of the soldier-philosopher, the most brilliant of the Founders, it behooves political columnists to incorporate him. Paul Krugman last weekend invoked the first treasury secretary as the originator of Keynesian economics and the notion that a robust national debt was not a curse but "a national blessing."

So here is my tribute to Alexander Hamilton. We should now honor him in sorrow, for just as his star is rising again we must mourn the passing of the great American experiment of which he was the foremost exponent: the independent judiciary.

The U.S. Senate majority issued the death notice for the noble experiment in February when it said that filling a vacancy on the U.S. Supreme Court was no longer a constitutional duty of the president and Senate but only a political gesture, which voters were to exercise nine months hence. Reversing 220 years of history, a president who does not face re-election no longer can make appointments.

The Supreme Court itself, the exemplar of independence, has seemed unsure of its fate. After saying people could not stop vast and often secret wealth from exercising its choice to buy elections, the court's majority was not quite sure they should be able to buy judicial elections. Efforts to protect against such corruption, in Arkansas and elsewhere, seem likely to fail, because people who vote for Jason Rapert for the legislature want to vote for judges just like him.

As if it had accepted its role of political avenger in the wake of the Senate's capitulation, the U.S. Supreme Court picked up its cudgels with new vigor last week when the first big political case after the death of Justice Antonin Scalia came before it — President Obama's immigration order.

But let's revisit Hamilton on the subject of independence — well, Hamilton and his sometime friend and sometime foe James Madison. The two big things missing in the confederation of states, they realized, were a strong central government with the power to solve problems across the states and an independent judiciary and supreme court, which would hold themselves above raging politics and interpret the Constitution and laws without favor, either to a political party or to a momentary popular majority. The judiciary might never be loved for its decisions, but the public had to have confidence that it was trying to follow the law and not political whims.

The idea of a Supreme Court above politics was central to getting the Bill of Rights into the Constitution. Madison at first was not as sure as were Hamilton and Jefferson that a constitutional declaration of human rights was workable, but Jefferson persuaded him that if the rights were placed in the hands of an independent judiciary, the rights of unpopular minorities (think blacks, gays, immigrants) would be protected from the whims of politicians and the majority.

Until recently, we paid lip service and often substance to judicial independence. Justices often did not follow their benefactors. Liberal John Kennedy's sole justice was the most conservative postwar judge. The appointees of Eisenhower, Nixon and Reagan gave us the great social decisions of our time: racial integration, abortion rights, same-sex marriage and rights of the accused like effective counsel.

But last month we had the spectacle of the chair of the Senate Judiciary Committee, with the assent of all his colleagues but one, attacking Chief Justice John G. Roberts, the ultraconservative appointee of his party, as a traitor to the cause because he did not follow current party orthodoxy to the last. In the Obamacare case, Roberts, like every Republican justice since 1940, recognized the authority of Congress and federal agencies to enact laws or rules governing activities of nationwide consequence. His four Republican colleagues stood their political ground.

Then came the hottest political issue of them all, save gay marriage: Obama's executive order to forego deportation of millions of undocumented residents who came here as children before 2007 or parents of children who are citizens or legal residents. Although Obama's order carried out previous Republican policy, the party had lurched violently the other way.

Former U.S. Sen. Richard Lugar, the longtime Republican from Indiana, wrote an op-ed in The New York Times explaining how the order was perfectly in line with current law and the tradition of giving presidents broad latitude in enforcing immigration rules. A 2012 opinion written by a Reagan Republican said the law gave the president and immigration officials broad discretion about whether, when and how to deport people. But political conditions had reversed since 2012 and the judges were expected to recognize it.

The oral arguments last week demonstrated that, from Roberts on down, they got the memo.


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