While American neoconservatives use "the war on terror" to impose democracy on the Middle East, two New York Law School professors urge us to rescue democracy here at home. In a newly released book from Yale University Press, Democracy by Decree, Ross Sandler and David Schoenbrod show how the plaintiff's bar and judges have used consent decrees to take government away from elected officials.
The two law professors know of what they speak. The careers of both as "public interest" attorneys contributed to creating the situation which they now deplore.
Rule by coercive court decree originated with the public school desegregation case, Brown v. Board of Education. Prior to this case, reform relied on persuasion, a balancing of contending interests, and appeals to public opinion. Brown inaugurated a new era of reform coerced by class action lawsuits and judicial decrees.
The result, according to Sandler and Schoenbrod, is that law in the U.S. is no longer accountable to the people, because state and local governments have lost both legislative and administrative powers. Schools, welfare agencies, prisons—indeed, practically the entire range of state and local public institutions—are actually controlled by attorneys and judges, not by governors, mayors and the voting public.
A number of constitutional and political developments combined to create an environment that enabled judicial coercion to push aside persuasion and the legislative balancing of interests. The Seventeenth Amendment to the Constitution provided for the direct election of senators and terminated the constitutional function of the U.S. Senate, which was to protect the states from a central government overlord. The New Deal destroyed the "enumerated powers" limit which the Supreme Court had placed on Congress' authority. The rise of national interest groups and cause oriented politicians destroyed the political party coalitions of federal, state and local legislators.
In 1963 the Ford Foundation funded the first public interest law firm. By 1967 the federal Office of Economic Opportunity had funded 300 local legal services organizations and a dozen national law reform centers.
Numerous private "public interest" law firms sprung into existence. Many, such as the Environmental Defense Fund and the Children's Defense Fund, are now household names. Over a wide range of issues, reform moved from legislative bodies to the courtroom. Judges became legislators in response to their "public" —class action attorneys.
The reform revolution is so complete, write Sandler and Schoenbrod, that lawyers today are enculturated with the belief that compassion and justice are achieved only through judicial coercion. The revolution gave public power to private attorneys, who are able to impact citizens' lives more forcibly than the people's elected representatives.
Sandler and Schoenbrod write that "the basic premise of democracy by decree is that government can be made more compassionate only if judges impose their will on elected officials." The reform revolution has destroyed the separation of powers and the American model of democracy.
Sandler and Schoenbrod offer measures that they believe would restore politically accountable law, but American democracy might be too far gone. The will to fight has departed from legislative bodies, and the American people are distracted and uninformed. Legislators, mayors and governors have learned that they can avoid making political enemies by letting judges decide divisive issues.
Judges are so accustomed to legislating in response to interest groups that they routinely set aside democratic outcomes. Legislating from the bench was once confined to high-profile state or regional desegregation rulings. It now invades local zoning ordinances. Recently in Walton County, Florida, a local judge, William F. Stone, legislated justice for a developer by throwing out the county's compatibility standards for real estate development.
The standards barred the developer from erecting a multi-story condo building in a community of single family houses. The judge dismissed the compatibility requirement on the basis of his personal opinion that the compatibility standards were "vague" and that the county commissioners had used "subjective judgment" when they voted down the developer's project.
Local attorneys believe that Judge Stone over-reached his judicial powers. The county commission had followed the recommendation of the county planning commission, which after a public hearing rejected the project on compatibility grounds. At the public hearing the local community had presented extensive photographic evidence of the existing character of the community and argued convincingly that the proposed project would so alter the character of the neighborhood that the definition of compatibility itself would change.
The only issue was whether high density condos are compatible with a unique community of low density single family homes. What the public wanted and law provided meant nothing to the judge, accustomed as judges are to ruling like Roman emperors.
If we export our broken down version of democracy to Iraq, Iraqis might see similarities between their old and new governments.
Paul Craig Roberts is the author with Lawrence M. Stratton of
The Tyranny of Good Intentions : How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice. Click here for Peter Brimelow's Forbes Magazine interview with Roberts about the recent epidemic of prosecutorial misconduct.
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