Friday, September 9, 2016

Rep. Jesse Kremer takes James Madison quote out of context in suggesting we should disregard the accepted practice of judicial review

Wisconsin GOP lawmaker chooses to ignore historical reasoning behind founder’s words

Rep. Jesse Kremer, a Republican from Kewaskum, published a blistering press release on September 8 in which he criticized the idea of judicial review, insisting that unelected judges should “serve God” while issuing out their rulings.

Kremer’s release tried to answer the question of why several issues in Wisconsin are the way they are. His answer? “Unelected, federal judges have decided that they can write law and become ‘gods’ in their own right.”

The Republican legislator further tries to tie his beliefs to those of James Madison, quoting the founder’s own words:
As James Madison once said, "As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper."
Those words, of course, are taken way out of context. I’ll explain...

First, it’s important to understand that there are two main aspects from Kremer’s piece that we have to concern ourselves with: judicial review, and the implications of having a religious test for judges and justices. The latter aspect comes with a simple rebuttal: the Constitution expressly forbids a religious test for government officials, the First Amendment prohibits government from endorsing religious beliefs, and Kremer is foolish for suggesting we become a theocratic nation.

The former aspect, that of judicial review, needs a bit more explanation; but it’s evident that Kremer is lacking in what he learned in history classes, which is disturbing given that he is a member of the state legislature.

Judicial review is the practice of making a decision on court matters through what is written in the legislative code, but also interpreting laws through judicial decisions made in the past, and what qualifies as legitimate through other governing documents (including the Constitution itself). It’s what leads judges and justices to make decisions in a linear way.

Here’s an example: in Griswold v. Connecticut, it was determined that the state could not forbid private citizens from using birth control in their private lives. From Griswold, the justices determined there was a right to privacy that, although not specifically stated in the Constitution, existed within the document through a penumbra of other rights that did exist.

From the case itself, Justice William Douglas explained:
Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
And from this decision, other laws were equally interpreted, including Roe v. Wade, the landmark case that guaranteed abortion as a legal right. Justice Harry Blackmun's opinion from that case:
The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut...
This linear basis of judicial review, of judges and justices forming opinions based on law AND past decisions, is the basis of the common law tradition of jurisprudence, which our nation has been practicing since before the Constitution was passed. And when the Constitution was itself being debated, several Antifederalists used the argument of preserving common law as reason to oppose the new government. Indeed, the father of the Bill of Rights, George Mason of Virginia, cited an absence of common law protections as one of his primary objections to the Constitution.

But defenders of the Constitution tried to assure detractors like Mason that common law (and with it, judicial review) would remain in place. Among these individuals was James Madison. In writing to George Washington, Madison stated quite clearly that the tradition of common law would not be altered in passing the new Constitution even without an explicit mentioning of it in its framework, an opinion that might surprise Jesse Kremer.

And in getting back to Kremer’s quote from Madison, we can see that in greater context it doesn’t match what he (Kremer) is trying to say it does. Kremer’s line in his press release seems to suggest that Madison is AGAINST judicial review. But Madison’s quote isn’t about the judiciary -- it’s about the power to veto legislation.

Click the image below for a more contextual quote. (Portions underlined in red my emphases.)

Madison is talking about a revisionary power, and who should hold it. What he meant by a “revisionary power” is who should have the power to veto a bill passed by the legislature. At the time of the Constitution’s debate, several lawmakers felt that the judiciary, as well as the president, should have “revisionary power” (effectively a veto) on bills they determined were unconstitutional. But that idea was tossed aside, for it would mean that the judiciary would have been above the legislature in its enumerated powers.

THAT’S what the quote supplied by Kremer is saying -- not that the judiciary shouldn’t have the power of judicial review, but that it should only come through traditional, common law practices -- meaning, when an aggrieved party challenges the constitutionality of a law in the courts following its passage. Though it would be more convenient, the judiciary should NOT be granted the power of veto, argued Madison.

* * *

It’s agonizing that it was necessary to write this post. Not because of its length or the research it took, or anything like that editorially. The true reason why it’s agonizing is that the concept of judicial review shouldn’t have to be explained to a sitting member of the state legislature.

It’s clear that Rep. Kremer has issues with court rulings that have been rendered in this state and elsewhere. He’s free to disagree with them, and to register his distaste in a public manner. But I doubt the real reason he’s so critical is because of judicial review.

I question whether he’d be opposed to judicial review and common law jurisprudence if the courts had rendered verdicts that had been appealing to him. Indeed, the state Supreme Court basically dismissed established law on campaign coordination (during the second John Doe investigation) using the same principles, yet Kremer failed to mention that in his published rant against judicial review.

Kremer shows he doesn’t understand how the courts are meant to function -- how they have functioned for the duration of this nation’s history. He also demonstrates that he doesn’t understand historical references in errantly trying to use James Madison as rationale for supporting his point of view. Those two facts should worry his constituents a great deal.

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