Tuesday, November 30, 2004

Why "the least dangerous branch"?

The phrase comes from Alexander Bickel's book of that name, which in turn comes from Alexander Hamilton's characterisation of the judiciary in Federalist #78. Alexander Hamilton referred to the Supreme Court as the "least dangerous" branch of the government because it possessed neither the "power of the purse" (i.e. the legislative power) nor that of "the sword" (the executive power and the police and army).

I was not particularly familiar with this appraisal back when I was in ConLaw class, but I think I understood the essence of this issue without having it pointed out to me. At one point, there was a bit of discussion of issues such as judicial restraint and "political questions", and I believe that I pointed out that at base, all court decisions are "political questions". I said that there's nothing in the Constitution (or even practically in the government structure) that will actually enforce adherence to the Constitution (or at least what the Supreme Court says the Constitution requires). The executive is free to ignore the courts, as is the legislature. And there's nothing the courts can do to say boo about it. My ConLaw professor, and author of one of the ConLaw books (and an eminent pragmatist, near as I can tell), Jesse Choper, said, "yes, but that's outside the subject matter of this course" (or words to that effect). That is true: They were trying to instruct me on what happens when the legal system works as intended and people follow the rules. It is yet to be shown that the current ruling regime will follow the rules, though. . . .

Here's Rep. Hostettler (from Steve Gilliard's blog (via Atrios):

"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."

Republican? Ya, yabetcha.

That's where we're at, folks.

-- Arne Langsetmo


At 7:29 PM, Anonymous Anonymous said...

thanks you motherfucker


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