Talking Sense 

Arnold Beichman

      Arnold Beichman, a Hoover Institution research fellow, is a columnist for The Washington Times.

Override the Supreme Court          

Rep. Ron Lewis, Kentucky Republican, has introduced a bill to allow congressional override of Supreme Court decisions. Trying to curb the Supreme Court’s power is about as hopeless as the fate of Sisyphus, doomed for eternity to roll up a steep hill a huge stone that tumbles back down when he reaches the top. Then the whole process starts once more. Will Mr. Lewis be a modern Sisyphus?

      Mr. Lewis’ bill is doomed by the cowardice of his congressional colleagues who talk big about judicial tyranny but do nothing about it even though the U.S. Constitution gives Congress pre-eminent power over the court.

      There is no need for Mr. Lewis’s bill anymore than there is need for a constitutional amendment once proposed to override decisions of the Supreme Court and lower courts.

      By a simple majority vote in both Houses, Congress under Article III, Section 2, can curtail the Supreme Court’s appellate jurisdiction. In other words, Congress could by majority vote tell the court it may not rule, say, on abortion. This is the language of the Constitution:

The Supreme Court shall have appellate jurisdiction, both as to law and to fact, with such exceptions, and under such regulations as the Congress shall make.

What could be clearer?

The writers of the Constitution did not intend to give the Supreme Court or the lower courts the power they have assumed almost from the beginning of the Republic. The Founding Fathers were concerned about a runaway judiciary.

      In fact, in the Federalist Papers, Alexander Hamilton wrote that the powers of Congress provide “a complete security [against] the danger of judiciary encroachments on the legislative authority.” Hamilton was anticipating the Supreme Court might become another legislature with this difference: its members have life tenure.

      Louis D. Brandeis, a liberal justice, in 1924 said the Supreme Court had converted judicial review into the power of “a super-legislature.”

      Here is a list of other congressional powers over the Supreme Court as enacted by the Founding Fathers:

      (1) Congress decides on the appropriation for the judicial branch, including salaries. If Congress says no to a requested salary increase, there is nothing the court can do about it.

      (2) The president appoints the justices, but they must be confirmed by the Senate.

      (3) Congress has the power to define the jurisdiction of the lower federal courts because the Constitution grants Congress the right “to ordain and establish such courts.” Nowhere in the Constitution, directly or implicitly, are federal judges granted the right to manage schools, hospitals, prisons and other institutions.

      (4) The House may impeach and the Senate may try and remove federal judges right up to the Supreme Court. There is nothing the courts can do about it because neither the chief executive nor the Supreme Court can interfere with the impeachment powers of Congress.

      (5) Congress is empowered to decide how many Supreme Court justices there shall be.

      The distinguished legal scholar, the late Professor Herbert Wechsler, has said, “Congress has the power by enactment of a statute to strike at what it deems judicial excess.” And yet Congress has rarely acted on its undoubted privilege.

I hope Mr. Lewis will buttonhole his colleagues and ask them why they have done nothing about judicial excess. Mr. Lewis should ask: With all these powers over the courts granted by the Constitution to House and Senate, why do our 535 representatives sit on their hands?

      I have an answer: The U.S. Supreme Court and the lower courts, state and federal, have gotten away with their power grab because of simple cowardice on the part of the Congress in exercising its constitutional power over the Supreme Court.

      In this era of judicial supremacy, it is forgotten the Founding Fathers made Congress -- not the president, not the Supreme Court—the ultimate power. It is no accident that Article I of the Constitution is Congress, Article II, the presidency and last, Article III, the Supreme Court.

      The Supreme Court now exercises unrestricted right over its appellate jurisdiction with the result that legal opinions are, as Justice Antonin Scalia has said,

. . . rendered not on the basis of what the Constitution originally meant, but on the basis of what the judges currently thought it desirable for it to mean.

      I wish Mr. Lewis would get his fellow lawmakers to exercise the powers granted them by the Founding Fathers and the U.S. Constitution over power-grabbing federal courts.

The Road Away from Serfdom

May 30th was the 60th anniversary of the publication of Road to Serfdom, by Friedrich Hayek. It is one of the most important books of the 20th century, as important as the publication of Das Kapital was, in its malign way, in the 19th.

Hayek’s intellectual blockbuster came out when it seemed Marxist socialism would displace capitalism as the world’s ruling economic doctrine. Sixty percent of the world’s population was living under socialism before the 1991 Soviet collapse. Hayek’s thesis drew on the words of Hilaire Belloc: “The control of the production of wealth is the control of human life itself.” In fact, he used Belloc’s maxim as an epigraph to one of the chapters in Road to Serfdom.

The defeat of socialism had actually started long before 1991. It began with the spread of Hayekism, the intellectual assault on the would-be “reign of virtue,” as Jean Jacques Rousseau might have put it. It began with a quasi-global plebiscite against Marxist socialism by millions of its victims who fled socialist countries any way they could, hurdling high-voltage fences, sailing in leaky tubs in the pirate-infested South China Sea and the Fidel Castro-infested Caribbean, risking asphyxiation in crowded freight cars, flying in home-made planes, anything to get away.

The Austrian-born Hayek who died in 1992, explained what he called “the extended order of human cooperation, an order more commonly, if somewhat misleadingly, known as capitalism.” In his later book, The Fatal Conceit: The Errors of Socialism, he elaborated on his thesis, namely socialism could never work, no matter how it came to pass, whether by revolution and dictatorship, as in the onetime Soviet Union, or by the ballot box, as in postwar Great Britain. Socialism to Hayek, a Nobel Laureate, had become a code word for the “economics of scarcity.”

For Hayek, the fatal conceit was to think a bunch of ideologized bureaucrats could through the machinery of what was called “central authority” -- in other words, socialism -- uncover the information needed to make the socialist system work. As the Economist [a British magazine] summarized Hayekism:

Socialism is factually flawed (because it is wrong in its description of why capitalism flourished) and logically flawed as well (because it must deny itself the information-gathering apparatus that it would need if it were ever to work).

For Hayek, competition was the surest way for an economic system to work and competition could exist only under a free market system. In other words, as economist John Cassidy put it,

By allowing millions of decision-makers to respond individually to freely determined prices, it allocated resources, labor, capital, and human ingenuity in a manner that can’t be mimicked by a central plan, however brilliant the central planner. . . . The view of capitalism as a spontaneous processing machine -- “telecommunications system” was how Hayek referred to it -- was one of the real insights of the century.

Mr. Cassidy suggested, “It is hardly an exaggeration to refer to the 20th century as the Hayek century.”

Yet “socialism” is still the reigning dogma in the vast majority of social science departments of American universities. As Hayek once put it:

The higher we climb up the ladder of intelligence, the more we talk with intellectuals, the more likely we are to encounter socialist convictions.

To remain a Marxist today or a Marxist fellow-traveler when the whole world has voted against the malice of Marxism raises the most profound questions as to the rationality of the true believer. Especially as we celebrate publication of Hayek’s irrefutable Road to Serfdom.    

UN Fraud on Terror

I simply cannot understand why President Bush keeps appealing to United Nations for its help and cooperation when that institution has proven itself to be incapable of doing anything significant in the field of human rights let alone international terrorism. Nor can I understand why Secretary of State Colin Powell has called the UN a “Coalition partner” when it is at best a sneering onlooker.

I base this judgment on a long dead-letter UN resolution dated Dec. 9, 1994, passed by the General Assembly almost a decade ago, about which little is heard. In fact, few people even know it exists. And why should they, since the resolution died the day it passed?

To discuss this resolution is to prove beyond a shadow of doubt the UN is a fraud, a betrayer of our hopes to establish a rule of law among nations. This 10-year-old resolution, titled “Measures to Eliminate International Terrorism,” passed with no opposition. And a fat lot of good it did.

The 1994 resolution text begins with this laudable preamble:

Having considered in depth the question of measures to eliminate international terrorism, [and] convinced that the adoption of the Declaration on Measures to Eliminate International Terrorism should contribute to the enhancement of the struggle against international terrorism . . .

Were such a resolution presented once again to the UN Sixth Committee, I doubt it would ever be considered. The rot is deep in the UN General Assembly. How deep? Mark these words of UN Secretary General Kofi Annan as late as Feb. 24, 1998: “Can I trust Saddam Hussein? I think I can do business with him.” Mr. Annan was bestowing his confidence on a dictator whose genocidal practices were well-known, a dictator who poison-gassed 5,000 Iraqis in Halabja in 1991.

The 1994 UN resolution demands that member states “take all appropriate measures at the national and international levels to eliminate terrorism.” Appended to the resolution is the “Declaration on Measures to Eliminate International Terrorism.”

Congress ought to appoint a special committee to find out why the UN has ignored its own resolution and why it has failed to fulfill what its own General Assembly demanded of the Secretariat.

The UN resolution said the General Assembly was

. . . deeply disturbed by the worldwide persistence of acts of international terrorism in all its forms and manifestations . . . which endanger or take innocent lives.

The GA, it said, was

firmly determined to eliminate international terrorism in all its forms and manifestations [and] that those responsible for acts of international terrorism must be brought to justice.

Mark those words: There is no justification, said the UN, for international terrorism -- that is taking the lives of innocent people as at the World Trade Towers and the Pentagon on September 11, 2001, or in Madrid on March 11, 2004. Terrorism is terrorism regardless of political slogans or issues, said yesterday’s United Nations.

If Kofi Annan and the UN Security Council are serious about combating terrorism, they should immediately call a special General Assembly session to renew the General Assembly Declaration of 1994. Were this resolution in effect today, the Coalition forces in Iraq would have the legitimating support of the UN just as the United States had in 1950 when it almost single-handed rescued South Korea from being swallowed up by the military dictatorship of North Korea’s Kim Il-sung.     *

 “A Man should stop his ears against paralyzing terror, and run the race that is set before him with a single mind.” –Robert Louis Stevenson