Judicial Tyranny, by Carrol Kilgore, Nashville: Thomas Nelson, 1977, 370 pp., $11.95.
Judicial Tyranny is the drama of an ideal now lost—the tale of the Constitution of these United States in the hands of our judiciary from the time of Jeffersonian idealism to the days of Nixonian pragmatism.
Carrol Kilgore—an attorney specializing in constitutional law and a student of the Austrian economist Ludwig von Mises—traces what he calls the "federal metamorphosis" from a once-limited republic to the boundless State democracy of today. It is a transformation best understood, he maintains, by observing the steady succession of Supreme Court cases that have slowly subverted the "best-drawn and most wisely-conceived document of State ever written."
The judiciary, warns Kilgore, have become the "robed priesthood of the American civilization." Almost all disputes are now resolved in the courts—from girls who want to play Little League baseball, to conservationists desiring to save the snail darter. It is the members of the Supreme Court's "stewardship as interpreters of the Constitution" that the author challenges. Always he asks, "Is this authority found in the Constitution?"—with the answer usually an emphatic no.
Beginning with United States v. Grimaud (1911), Kilgore traces the gradual judicial expansion of the interstate commerce clause, whereby the government's law-making power came to reside in federal regulatory agencies, a "giant bureaucracy responsive to no one." Why did this happen? Authoritarian government with "dictatorial control of the minute details of daily moral, social, economic and political life cannot be achieved when all the law-making powers are permanently kept in the hands of Congress."
The book is well researched, with scores of decisions subjected to rigorous constitutional scrutiny. Judicial handling of Selective Service resisters, tax suits, the integration controversy, legislative reapportionment, and more, come under furious attack. The book is an invaluable reference source for anyone studying the history of the aggrandizement of power in this country. Its author has few illusions about the nature of government.
the achievement of power over other people's affairs is the aim of every politician.…governmental power can never be expanded except by further limiting the freedom of one or more individuals;…of all civil rights which any individual possesses, the most fundamental is the right to be free of lawlessness in government.
But the author's polemic is a bit one-sided. After all, the Constitution allows the central government to "make all Laws which shall be necessary and proper'' for executing any enumerated power. And these powers include "to regulate Commerce…among the several states" and "to coin money, regulate the Value thereof." The income tax, via a lawful amendment, is quite constitutional. Although with the 10th Amendment the Founders constrained federal power, this exclusionary clause turned out to be impotent protection against the sweeping powers conferred on Congress via the Constitution's general-welfare provisions, on which the Supreme Court has relied heavily. It can thus be argued that our Constitution was a blueprint for the very tyranny the author laments.
Kilgore includes a proposal for reform—that the doctrine of stare decisis should have no bearing in constitutional law. This is the common-law doctrine that past decisions of the court are binding upon the Court and, especially, on lower courts. Kilgore's argument is that, since judges take an oath to uphold the Constitution, they owe primary allegiance to it, and not to other judges' holdings. So on constitutional issues, every judge must look anew at the guarantees of the Constitution. Rulings could always be overturned on appeal, but the higher court's holding would apply only to that one particular case.
Presumably, a highly unpopular Supreme Court ruling would precipitate a flood of appeals as lower courts disregarded it. Popular pressure, Kilgore argues, would then be brought to bear on the Court to reconsider, or at least demonstrate, the wisdom of its interpretation. The Court's quasi-legislative power has come from the "evil of the false assumption that Supreme Court decisions are a part of the supreme law of the land, instead of merely attempted interpretations of the supreme law."
Kilgore's proposal is an intriguing one. Would it only permit provincial prejudices to hold temporary sway? Or could it bring diversity to a nation rapidly being taught to march to the sound of the same (federal) drummer?
Michael Goode is completing studies toward a law degree.
This article originally appeared in print under the headline "Judicial Tyranny".