I had a high school history teacher who, periodically, would draw three circles on the chalkboard representing the three branches of government: executive, legislative, and judicial. Depending on what era in history we were looking at, the respective circles would be bigger or smaller. Possibly there was a better visual representation to be had, but the basic notion was that, where one branch refused or declined to act, the other ones would expand into the vacuum.
Speaking of three rings, Congress has largely looked like a circus for the past generation or so. And that, as much as anything else I believe, is why we have seen the Presidency and the Supreme Court looming larger in our lives. This might also be why “limited government” is mostly a fantasy — at least if its proponents seek to achieve it through gridlock and inaction. The branches would have to affirmatively limit themselves and the other branches. Inaction simply leads to one of the other branches stepping into the breach.
It’s worse than that: Congress (when not in gridlock) loves passing high-falutin’ vague language and then letting courts fill in the blanks. Scalia recently called them out on it
It’s one of the reasons, even back before law school, that I opposed the Equal Rights Amendment.
And, so on and so forth down the line to the states and municipalities. Some sections of both the Indiana State and Indianapolis Muni codes have holes big enough to drive trains through (which I imagine was done on purpose). Leaves lots of wiggle room, especially for those tasked with upholding those laws. Judgement and interpretation. Lots more work for lawyers, who, on the whole, wrote the things that way in the first place.
This idea that the other branches may fill up the “void” left by a smaller branch is certainly true some of the time. However, that would be a small minority of the time.
The best example would be one of the most divisive topics of today, Obamacare. If Congress did not pass Obamacare because a Republican filibuster in the Senate was successful, the massive piece of legislation would not exist or have a chance to exist, until the Legislature decided differently. That “void” cannot be adequately filled by the other branches, even if they wanted to.
I am curious as to how Doug would propose for the other two branches to push back on the Supremes. Over the last two generations, the Supremes have, quite frankly, stolen power from the other two branches. Case in point, Roe v. Wade, which was legislating from the bench if ever there was any.
Buzzcut:
The Legislative Branch can push back against the Supremes by enacting one or more constitutional amendments reversing decisions they don’t like and sending to the states for ratification. There is also the power of impeachment, and some authority to limit jurisdiecion. The Executive Branch can make judicial nominations/appointments.
The fact thar these things are somewhat difficult and time-consuming, and in most cases not thus far exercised doesn’t mean that they are not there, carefully placed by the Founding Fathers in their universal wisdom.
(The same Founding Fathers, by the way, that Michelle Bachman says worked tirelessly against slavery. Or maybe it was only three-fifths of them.)
Buzzcut:
In addition to amending the Constitution, Congress can take jurisdiction away from the federal courts by repealing federal statutes; it can defund the entire judiciary or selective parts of it (like budgets for SCOTUS law clerks) and it can decide not fill judicial vacancies. Once an Article III federal judge is appointed, he or she may serve for life so long as they maintain, “good behavior.” But this does not apply to other judicial officers or employees — or buildings. Congress could turn the Supreme Court building into a shopping mall and relocate the Supreme Court to rented space at a Days Inn. The president can veto judicial appropriations and decide not to nominate judges.
(1) Court Packing
(2) The (mis?)quote of Andrew Jackson: “Justice Marshall has made his decision, now let him enforce it.”
Congress looking like a circus?
What tipped you off? All the clowns?
The Supreme Court has power only through acquiescence.
Paul, I suspect you are advancing your argument in good faith, but even so, I just can’t bring myself to respond seriously to an argument using the term “Obamacare.” It’s a verbal gang sign, perhaps unintentional in your case, like using “Democrat” as an adjective or “teabagger” or something.
If I were a clever man, I’d figure out a way to tie that into Rep. Bachmann’s John Wayne/John Wayne Gacey confusion.
Also, I wouldn’t misspell “Gacy”.
North Side!
BTW, I don’t see how you can say”Teabagger” = “Democrat” = “Obamacare” with a straight face.
“Teabagger” = an overt attempt to be offensive by combining the “Tea Party” with a slang term for a sexual act that many might find to be a bit out of the norm.
Democrat as an adjective = improper English that may indicate bias against the Democratic Party, but hardly a gang sign.
“Obamacare” = much better known (and easier to type) than “Patient Protection and Affordable Care Act.” Just like the term “the Bush tax cut” is much easier to type or say than: “Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) or ” Jobs and Growth Tax Relief Reconciliation Act of 2003 (JGTRRA)”
Much better known because its opponents have a good PR machine. Easier to say and remember, for sure. You could say “health care reform,” but that is loaded as well – given that “reform” is generally regarded as positive. Health care restructuring would probably be easy and neutral. New health care law might work. Even better would be to specify the legal provisions at issue rather than lumping the whole thing together as a vaguely defined whole. (That doesn’t work so well for its opponents because most of the individual provisions are not unpopular; the individual mandate being a notable exception.)
Teabagger, incidentally, was initially used as a self-description; though gleefully seized upon by people who were: a) opposed to the Tea Party “movement;” and b) knew what teabagging meant.
Democrat as adjective is not accidentally poor grammar. A focus group somewhere found that people regarded the sound as more jarring and negative than Democratic, so guys like Frank Luntz started pushing it.
If you were a more clever man, you would realize that Rep. Bachmann did not have any “John Wayne/John Wayne Gacy confusion” – that this is a smear synthesized by our beloved media professionals.
It lessens you to repeat it, unless you think public debate should be left to the spiteful with too much time on their hands and a connection to Google.
Also, I’m really curious where you learned that “teabagger…was initially used as a self-description”.
Even if some tiny number of individuals were tin-eared enough to do so, I doubt you can show it was ever commonly used that way by tea partiers. Just another sneer from the oh-so-sophisticated cool kids table.
But what do we know – we’re just folks with sloping foreheads in the ‘middle places’. [Thanks for elevating the debate, David Carr!]
Don’t like Democrat as an adjective, myself – but I think its pretty small beer compared to the continual mud shower that seems to inform public debate, these days.
A People’s History of Teabag.
The tin-eared individuals I was referring to – you found them!
Sort of obvious they’re not the leading lights of anything…