Judicial Anarchism

Guest Post by The Zman

Russell Kirk argued that there are three cardinal ideas in Western civilization. There is the idea of justice, the idea of order, and the idea of freedom. Justice is the process that protects a man’s life, property, natural rights, status and his dignity. Order is the principle and the process to ensure that a people will have just leaders, loyal citizens, and public tranquility. Freedom is the principle that a man is made master of his own life. These three great concepts are the cement of American society.

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Some nations have order without justice or freedom. China is a modern example of a tyranny where order is maintained, but there is no justice or freedom. Somalia is an example where there is freedom, but no order or justice, the libertarian ideal. There can be no justice, of course, without order and freedom, which is the point of the American experiment. Our society is a regime of ordered liberty, designed to give justice, order and freedom all their due recognition and respect.

Most everyone in the American chattering classes, takes order for granted, In fact, they never think much about it. Instead, they spend their energy fretting over liberty and justice. That has been the basis of the political divide in our ruling class since the end of World War II. The Left has largely been focused on justice, particularly the ideas of status and dignity. The Right has focused on liberty, particularly with regards to property. Both sides of the political class have always assumed order was a given.

Of course, order is not a given. The Roman Republic is a good example of what happens when order breaks down in the ruling class. The elites slowly stopped enforcing its own rules on the ruling class. Whether out of necessity or convenience, order slowly broke down. By the time Marius and Sulla came along, playing by the rules was a sucker’s game, if you were in the ruling class. That set the stage for a strong man willing and able to ignore custom and seize control of the state.

The other way in which order breaks down is the example of Weimar Germany. The political class lacked the means and the moral authority to impose order. The chaos on the streets is commonly blamed for the rise of you know who. The disorder following the collapse of the Soviet union is blamed for the rise of the oligarchs. History is full of examples where the ruling class either lost control or lost the moral authority to maintain control. Every revolution in history follows this model to some degree.

What we are seeing in modern America is a strange combination of how order breaks down in a society. The American ruling class is coming to the conclusion that the rules really don’t work for them. They don’t have the will or ability to simply toss them aside and impose a new order, but they refuse to allow the old rules to limit their power. That’s what’s happening with the chaos we see in the courts. Judges, who are members of the ruling class, are willy-nilly overthrowing the constitutional order.

As Daniel Horowitz wrote last month, the Federal judiciary is claiming power for itself, that it has no constitutional basis. Judges are just making things up so they can overturn laws and thwart the constitutional power of the President. The Founders contemplated rogue judges, so there are provisions for removing a judge from the bench. That’s fine for one judge here or there, but no one has ever thought about what happens when the whole judiciary goes rogue. The remedy may be too dangerous to attempt.

Take a look at the list of suggestions in that article. Having states ignore Federal courts is not a small thing. it is a click away from secession. If a state legislature elected to go this route, they would be placing themselves in legal jeopardy. A federal judge could order the arrest of the speaker of the state house or the governor. Would the governor respond by having the judge arrested? It is not hard to see how this can get out of control, pitting the political class against itself, but also against factions in the public.

In a rational, liberal society, there should be debate and division, within the context of an agreed upon set of rules. What the court is doing in America is questioning the very idea of rules. They are claiming for themselves the right to make up whatever they feel like in the moment, in whatever incoherent fashion they choose. This is not judicial activism, so much as it is judicial anarchism. The founders never contemplated such a thing and our political class is based on the assumption that this is impossible.

Ultimately, a break down in civil order always ends the same way. Whether it is the result of civil war in the ruling class or a war between the ruling class and the people, there is a collapse in moral authority. Everyone loses respect for the old rules, which kept the old order. What comes next is also predictable. A man on a horse rides in and has the will and the means to impose order. That’s what comes next if the political class does not suppress what looks like a revolt from the bench. Otherwise, someone else will.