One of the more interesting recent comments by the current crop of Republican presidential candidates has to be Dr. Ben Carson's last weekend on Fox News, in which he condemned the very concept of judicial review as set forth in the famous 1803 case of Marbury vs Madison. (Of course he was asked whether the executive branch should enforce laws the Supreme Court deems unconstitutional, as if that were a perfectly reasonable question. So it's not entirely his fault.) Still, this isn't the kind of thing you hear from presidential candidates every day:
"We need to get into a discussion of this because it has changed from the original intent."
Actually, 1803 was pretty close to the "origin" of the constitution. One of the parties in Marbury vs Madison was even one of its originators. So second-guessing judicial review a couple of centuries later on the basis of original intent is fairly absurd. But it is in keeping with a certain far-right belief, which has held for decades that the courts are "legislating" from the bench. This goes back to an earlier time when the Supreme Court was in the hands of a liberal majority that was "legislating" that bigots stop discriminating against racial and ethnic minorities, which the right has always felt was an infringement on their freedom (or of their state's rights at the very least).
Phyllis Schlafly's Eagle Forum described it this way:
In 1953, newly-elected President Dwight Eisenhower appointed Earl Warren to be the Chief Justice of the United States. This nomination proved to be the first shot fired in a judicial/constitutional revolution which continues today. As Robert Bork has stated, "[The Warren Court] stands first and alone as a legislator of policy, whether the document it purported to apply was the Constitution or a statute. Other Courts had certainly made policy that was not theirs to make, but the Warren Court so far surpassed the others as to be different in kind."
The Warren Court (1953-1969) fueled the Culture War into an inferno and then placed the federal judiciary squarely in the white-hot center of the conflagration. "Impeach Earl Warren" signs exploded like rockets across the nation as Americans began to realize what was happening. But the courts and the Constitution have remained at the center of our culture conflict, and much of the Warren Court's legacy remains intact.
Carson may be taking this to an extreme but it doesn't come out of nowhere. It's only surprising to the extent that he and the rest of the fringe haven't noticed that the courts have been successfully packed by conservatives and centrists during the last 30 years; his argument doesn't quite have the same salience it had back in the day. Moreover, he doesn't seem to have heard about the latest front in the right's legal revolution: suing bureaucrats over federal regulations.
It's important to note here that the right's loathing of the federal government is actually quite narrowly focused on certain areas of interest. They are fully behind the neoconservatives' imperial project -- flag waving and martial strutting are fundamental to American conservatism. (Small government is a very imprecise term; they have no problem with a big military and police apparatus. In fact, those bureaucracies have a blank check.) But within that narrow anti-government focus of low taxes is their extreme hostility to government regulations.
So now we see the conservative movement -- which, not for nothing, has historically regarded the profession of "trial lawyer" as something only slightly above "mafia hitman" in terms of social disapprobation -- considering the idea of flooding the courts with frivolous suits. But perhaps an even more remarkable feature of this plan is that it's being floated by none other than the man who brought us the racist right wing tract "The Bell Curve," Charles Murray.
Murray has a new book coming out that is poised to take the conservative and libertarian world by storm. It's called “By the People: Rebuilding Liberty Without Permission," and in it Murray proclaims, “the government cannot enforce its mountain of laws and regulations without voluntary compliance." His book proposes to create "a private-sector counterweight that pulls back the curtain and exposes the Wizard’s weakness.” The private sector counterweight, in this case, will be a billionaire-funded institution that will bankroll thousands of lawsuits against the government, which Murray fatuously names "The Madison Institute."
Many of us who watched the recent HBO documentary "Going Clear" about the Church of Scientology and its long battle against the IRS -- to win tax-exempt status as a religious organization -- will recognize this strategy. Peter Montgomery at Right Wing Watch did:
Scientology besieged the IRS with 200 lawsuits from the church and more than 2,300 lawsuits on behalf of individual parishioners in every jurisdiction in the country, “overwhelming government lawyers, running up fantastic expenses, and causing an immense amount of havoc inside the IRS.” [Scientology leader David] Miscavige boasted that church lawyers had so exhausted the IRS’s legal budget that the agency couldn’t afford to send its lawyers to an American Bar Association conference.
That is what Murray wants to do to agencies like the Environmental Protection Agency, the Occupational Safety and Health Administration, and the Equal Employment Opportunity Commission.
If conservatives follow the Scientology strategy to the letter, they will file lawsuits against individual federal employees as well, making their lives miserable and putting them into personal financial jeopardy. One can see certain outlines of this process in the Republicans' pursuit of former IRS chief Lois Lerner in the bogus IRS scandals that they continue to draw out to this day. But there's potentially more to the strategy than just lawsuits. Montgomery points out that the Scientologists embarked on a major PR campaign to assassinate the characters and otherwise discredit individuals involved.
They're going there too:
Murray says the Madison Fund will wage public relations campaigns to ridicule government regulations and the officials enforcing them. Wright documents that Scientology supplemented its legal war on the IRS with ads featuring celebrities, including non-Scientologists, who had been audited or otherwise had tangled with the IRS.
There are a lot of anti-government billions out there just waiting to be put to such good purpose.
Murray's book is being met with rapturous anticipation among the right wingers. This may be the big "new idea" they've been waiting for. Fighting regulations is the new organizing concept that's really animating the conservative intelligentsia in this age of GOP congressional dominance. The idea of a tyrannical president issuing orders to executive agencies, as if that constitutes a coup, is a powerful motivating narrative for the red-meat crowd. So, needless to say, they are very excited.
And they probably aren't the only ones. There's one guy running for president who's already professed his great admiration for Charles Murray:
[National Review editor Rich]Lowry asked Jeb Bush, "... is there any policy or anything public officials can do to help turn back what has been a rising tide of family breakdown crossing decades now?"
"Absolutely, there is," Bush, a likely 2016 Republican presidential candidate, said. "It's not exactly the core. My views on this were shaped a lot on this by Charles Murray's book, except I was reading the book and I was waiting for the last chapter with the really cool solutions — didn't quite get there."
Later in the interview, Lowry asked Bush what he likes to read. Again, he cited Murray.
"I like Charles Murray books to be honest with you, which means I'm a total nerd I guess," Bush said.
"Nerd" isn't the first word that comes to mind from those comments. His campaign declined to say which of Murray's books he admired (an admission in itself) but you can be pretty sure that this latest will be on the list.
Of course, if a Republican becomes president, the whole idea becomes moot. The billionaires would withdraw to their counting rooms to add up their profits while the GOP executive makes their job unnecessary. The fact that they are contemplating this assault through the legal system is an admission that they don't really believe they'll have the political power to do this any time soon.