Chap 8

Ads, Free Speech, Money and Schooling

From around page 2.

Too often in initiative campaigns, well financed media campaigns are geared to scare voters into forgetting that initiatives are subject to the same checks and balances that keeps our nation from hitting too many damaging legislative bumps.  The moneyed PR firms often tell the citizens that the sky will fall if this or that initiative should pass.  They imply that there are no engine hoods, convertible tops or umbrellas, or shock absorbers around to protect the citizens from the downpour.  Their strategy relies on building this fear into rejecting any change from the status quo and thereby rejecting an initiative calling for change.  The hired guns at the PR firms are professionals who know the law allows them to bend the truth into a horseshoe around lies they stake.  Since the political campaign is not being held in a theater where they are yelling “fire,” they have our nation’s guaranteed freedom of expression to toss the horseshoes around any stake they plant.

That “freedom of expression” is not likely to disappear.  Consequently, more Americans must learn critical and logical thinking from parents as well as from the schoolhouse to differentiate between hype and truth and search for the harder to find of the two.  Too many voting citizens forget during well-financed, highly pressurized campaigns that the checks and balances designed into our democratically driven engine has an engine hood as well as convertible top and shocks.  The engine hood protects the engine.  The convertible top can be raised to avert downpours – when the sky is supposedly falling.  And its republican shock absorbers can be used to smooth out dangerous bumps. 

 A quick walk through some of the principles of  “Judicial Review” may be helpful to remind voters of scare tactics that shouldn’t work in campaigns, but often do.

Whatever the Framers intended, Chief Jus­tice John Marshall claimed the power of judi­cial review in 1803, in the most celebrated case in American history, MARBURY V. MADISON. "It is emphatically the province and duty of the judicial department to say what the law is," Marshall wrote. So when the Constitution and a law conflict, "the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty." Since the Constitution is paramount law--for if it may simply be altered by the legislature, what is its purpose?--the Constitution must control. Oth­erwise, the "courts must close their eyes on the Constitution." And judicial blindness "would subvert the very foundation of all written con­stitutions." It would mean that even though the Constitution says an act "is entirely void," it would be "in practice, completely obligatory."

Since Marbury, judicial review has been an accomplished political fact, no matter how often Congress and presidents have reproved it. Despite a long-running debate over the le­gitimacy of its actions, in two centuries the Court has overturned 125 acts of Congress, struck down nearly l, 2OO state and municipal laws and ordinances, and repudiated many more acts of federal and state officials. The principal objection is the seeming paradox in a democracy of nonelected officials overruling policy judgments of the people's elected repre­sentatives.

The theoretical debate will never be settled, for the palpable tension between representa­tive institutions and the people's rights is at the heart of the Constitution. But on a practical level, judicial review is the solution: it is one of the principal CHECKS AND BALANCES in a com­plex system of separated powers. Just as the Court checks unconstitutional legislation, so the Court's constitutional rulings can be al­tered over time by presidential appointments, as Roosevelt demonstrated in the late 1930’s and as Presidents Ronald Reagan and George Bush have been demonstrating more recently. More­over, as explored under a separate heading (see SUPREME COURT, JURISDICTION OF), Congress potentially has a powerful check of its own--the power to curb the kinds of cases the Court may hear.[1]