Conservatives have been disappointed by several recent Supreme Court rulings. From declaring half of Oklahoma a tribal reservation to a strained interpretation that conflates sexual orientation and gender identity with one’s sex for purposes of Title VII of the Civil Rights Act, the supposed conservative majority on the court has swung and missed on some big issues.
Some question whether the right justices were nominated, but a more important question is whether so much policymaking power should be left to the courts. Judge Wyrick, one of Oklahoma’s legal luminaries, recently addressed the latter question from a political perspective, identifying legislative failures nationwide for putting too much importance on the opinions of nine Ivy League lawyers. This is absolutely correct, as far as it goes.
The public views legislators as inept at even the most basic functions of governance, spending trillions and doing little else. They may be correct, but the public hasn’t found the correct solution. Since at least the 1940s the Supreme Court has been wading into congressional business. It has been interfering with the executive for far longer, with Marbury v. Madison comprising the foundational case for American Conditional Jurisprudence.
So, it’s no surprise that those seeking a long-term solution to America’s lack of cohesive leadership look to the courts. American jurisprudence is sticky; judges prefer to adhere to earlier decisions instead of investigating the true constitutionality of a statute for themselves. This leaves advocates with a nearly permanent solution if they win at the Supreme Court.
But the over-reliance on the courts isn’t merely a political problem; it’s cultural. We lack an engaged voting citizenry. It’s not that the courts are broken; it’s that the rest of society is broken and we’re leaving the courts as the last pillar holding up a roof that was meant to be supported by many columns. As might be expected, the last pillar is cracking under the added weight.
Diagnosing the problem is worthless without a course of treatment. So how do we fix our broken political culture? Ordinary citizens with common sense and common cause have to reengage politically. We must recapture our institutions from those who wish to capitalize financially on our general apathy and those who wish to turn our limited government, which upholds free markets, into one that takes from the rich, incentivizes unemployment, and never misses an opportunity to control individuals’ choices.
Cronyism is an inevitable part of government. Tyrants give special favors to their friends. Democratic majorities vote themselves special favors and fill offices with their friends. Interested parties make sure they protect their special positions. The benefits of cronyism are concentrated while the costs are widely dispersed. For instance, current practitioners have a lot to gain by limiting competition through an occupational license.
This is why licensing schemes are more often sought by members of the profession than by consumer protection groups. Consumers are the ones who bear the costs of licensing, but each license robs only a little of their wealth. In contrast, licensees gain a great deal from the increased prices imposed on consumers. If ordinary citizens without a direct financial interest were more engaged, we might ask the question, “Is this license really needed?”
Likewise, ordinary Americans who are satisfied with free markets have become complacent, trusting that capitalism will work things out. This creates a twofold danger: first that the cronies will control, and second that the socialists will seize on this shortcoming to undo free markets rather than fix them.
The American constitution was designed to govern a moral and engaged populace. It cannot withstand a citizenry that would punish the wealthy for having too much, nor one that would sit idly by and watch the powerful fortify their position until it’s unassailable. If you want to see the republic saved, don’t leave the burden on the courts. Get involved. Run in a school board election. VOTE in a school board election. Hold your elected representatives accountable.
Additionally, we must enact policies that make it easier for the average citizen to be involved. For example, holding elections for all offices in November, demanding that legislatures make policy and delegate only the insignificant details to agencies (which are not directly accountable to the public), giving voters tools to quickly evaluate which agencies and programs are doing a good job, and telling government to do less so we can manageably hold it accountable. Each of these are examples of ways we can make citizen engagement easier. But, for any of that to work, citizens have to believe their engagement matters, and they have to pursue that engagement in forums beyond the courts.
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.