Freakishly Confident

Avedon Carol, pinch hitting over at Eschaton writes:

One reason I don’t think it’s at all paranoid to suspect that the Republicans have deliberately taken over the voting system in order to cheat is that they keep doing things that don’t otherwise make sense. There’s a rather long list of things you just wouldn’t expect them to think they could get away with unless they really thought they could control the ballot box, because otherwise they would have to expect that the public would kick enough of them out to not only end some political careers but also make impeachment – and prison – a distinct possibility.

As pointed out to me this morning by my favorite correspondent, the item at the top of the list (that may just be the “real” nuclear option) is this provision in the “Real ID” bill that removes judicial review. This article calls the hoohaw over the filibuster a trojan horse —- it’s the elimination of judicial review that’s the constitution buster.

The right has held for decades that judicial review has no constitutional foundation. Because of various rulings over the past 50 years on civil and individual rights with which they disagree, they have developed the dogma that the courts do not have the right to determine if a law is unconstitutional, despite more than 200 years of acceptance of Marbury vs Madison and the debate that came before. This is what Pat Robertson is talking about when he says, “if you look over the course of a hundred years, I think the gradual erosion of the consensus that’s held our country together is probably more serious than a few bearded terrorists who fly into buildings.” (It’s actually the last 200 years he’s trying to overturn, but what’s a century or two?)

This isn’t a new thing, but like so much else lately in wingnut governance, it was until quite recently a fringe position that nobody took seriously. Indeed, even conservative legal scholors like John Yoo, who is not one would ever call a moderate, disagrees with this interpretation. But, it has clearly gained currency recently. The Senate, for instance, has put forth several more or less symbolic bills that are explicitly exempted from judicial review. There’s S. 1558, the “I can put the 10 commandments anywhere I damn well please and judge is going to tell me I can’t” Act. And there’s S. 2082, the “I can say God told me to do this and no judge can say it’s unconstitutional” Act (also known as the “foreign govmint’s got nothin’ to do with our laws” Act.) And then there’s S 3920 the “two thirds majority can overturn the Supreme Court” Act.

But these have no chance at passage. The “Real ID” bill, however, does. As far as I’ve been able to ascertain, nobody has ever actually passed and signed a bill that would explicitly exempt legislation from judicial review. This is unprecedented and if it happens it should trigger a constitutional crisis. If congress can pass any laws it wants and declare them exempt from judicial review — as with the Real ID bill — and also peremptorily “bar judicially ordered compensation or injunction or other remedy for damages” then our system of checks and balances has been gutted. There will be nothing to stop a majority, particularly if it ends the filibuster, from passing any laws it chooses with a simple majority and exempting all of them from judicial review for constitutionality. In other words, the constitution says what the majority says it says.

As Avedon Carol points out in the post I linked to above, you have to wonder why they would do this when the shoe could easily be on the other foot at any given time. You have to believe that it has always been that threat that kept previous majorities from enacting such a fundamental change to our system that could only help a party intent upon enacting its agenda unimpeded — but which could be used by either party to do it. These last few elections have been close. The GOP majority is not solid. And while I have argued that the double standard is entrenched because of the republicans’ willingness to make nonsensical arguments that confuse the press and render any accountability useless, it will not do them much good if the rules have been changed and a new Democratic majority operates as ruthlessly unconcerned with public opinion as they do.

No, you really do have to wonder how they think they can get away with such radical changes that have no constitutional or even popular support. It really does make you have to at least consider the possibility that they know they will not lose elections.

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