By Ronald L. Trowbridge
Appointed by President Ronald Reagan, Ronald L. Trowbridge was director of Educational and Cultural Affairs at the United States Information Agency, directing the Fulbright Program. His position required U. S. Senate confirmation. Later he became chief of staff for U. S. Supreme Court Chief Justice Warren Burger, publishing a book on the Chief Justice. He holds a Ph. D. in English from the University of Michigan, where he taught for several years. He became a tenured full professor at Eastern Michigan University and later a Vice President and editor of Imprimis for 14 years at Hillsdale College. He was editor of the Michigan Academician, the journal of the Michigan Academy of Science, Arts, and Letters. He founded the Maine Heritage Policy Center, which among other pursuits focused on higher education. From 2006-12, he was an adjunct professor of English at Lone Star College. From May 2013 to December 2018, he served on the Board of Trustees at the Lone Star College System. He is presently Senior Research Scholar at the Nexus Research and Policy Center. He is a member of the Mont Pelerin Society. He has published in the past six years some 75 articles.
Before daring into this analysis, I should cite my background for it. I was chief of staff for U. S. Supreme Court Chief Justice Warren Burger, working for or with the “Chief,” as we called him, for nine years. I was also Staff Director of the bipartisan presidential Commission on the Bicentennial of the U. S. Constitution. Elsewhere, I have published several articles and given many lectures on the Constitution.
Prime Minister Benjamin Disraeli said near the end of the 19th Century that the U.S. Constitution was “the most remarkable political document ever penned by the hand of man.” Yes, “political,” but not necessarily legal document. I say this because I believe the U.S. Constitution is seriously flawed in one major regard: the selection, limitations, and control of Supreme Court justices.
In Italy, the Constitutional Court has 15 judges, one-third nominated by the President, a third by the Parliament, and one-third by administrative supreme courts. Judges are appointed for nine years and can’t be reappointed. In contrast, U. S. Supreme Court justices are appointed by the President, with the advice and consent of the Senate. Their appointments are for a lifetime. Moreover, these appointments are political: Democratic presidents appoint, always, center-left judges, and Republican presidents appoint, always, center-right judges.
Presently, the U.S. Supreme Court is comprised of four liberals and five conservatives. This is to say that five justices can legally run and control legal aspects of the entire country — five! That is an imperial court — fine if it suits one’s politics.
Constitutional scholar Jeffrey Toobin has observed: “When it comes to the core of the Court’s work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases… When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices.” What separates justices “is judicial philosophy — ideology — and that means everything on the Supreme Court.” Five people!
Similarly, Richard A. Posner, the great conservative judge and law professor, has written: “It is rarely possible to say with a straight face of a Supreme Court decision that it was decided correctly or incorrectly.” Constitutional cases, he adds, “can be decided only on a basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.”
A second serious flaw with the U. S. Constitution is that the Supreme Court, the third branch of government in addition to the Executive and Legislative branches, is not governed by checks and balances. Presidents, on the other hand, have to be elected and perhaps re-elected, and their actions can be overridden by Congress. Congress, too, has to be elected and re-elected, and their passed laws can be vetoed by the President. No such governance controls the Supreme Court. Yes again, five people.
The Italian Constitutional Court is far more democratic
I wish to examine now, arbitrarily, selected Articles of the Italian constitution.
Article 1 focuses on civil rights, stating that the constitution is “founded on labour.” The constitutional right that the U.S. Constitution most heavily emphasizes is the right to private property, cited at least eight times in the Constitution.
Article 3 emphasizes “equality”; the U.S. Constitution contains an equal protection clause in the 14th Amendment, but more heavily focuses on freedom. It is a document of limited government. Article 17 cites the “right to assemble peaceably.” The First Amendment of the U. S. Constitution cites “the right of the people peaceably to assemble.” Labor unions in the U.S. cite this clause as their constitutional right to exist.
Article 27 states that the death penalty is not permitted. The U.S. Constitution, in contrast, states that an individual cannot “be deprived of life, liberty, or property, without due process of law.” If given due process of law, an individual can lose his life, liberty, or property.
Article 33 states that entities and private persons have the right to establish schools and institutions of education. The same holds in the U.S., though educational establishments vigorously inveigh against Charter Schools, as coming at the expense of public schools.
Article 42 holds that private property is recognized and guaranteed by law, further asserting that private property can be a financial source that can be expropriated for public zeal. The U.S. Constitution is stronger in defending private property and in mandating that just compensation be given for property that the government confiscates. The Fifth Amendment reads in part that no one can be deprived of “property, without due process of law; nor shall private property be taken for public use, without just compensation.” Confiscation of private property must be for public use, not private use, though local governments often try to violate this restriction.
Article 52 declares that military service is obligatory within the limits and the ways set by law. Conscription is no longer mandated in the U.S.
Article 56 states that the Chamber of Deputies is elected by universal and direct suffrage. Voters must be at least 25 years old. In the U.S. the legal voting age is 18. Liberals want it lower; conservatives, higher.
Article 83 states that the President of the Republic is elected by Parliament. In the U.S., it is by Electoral vote, not popular vote. Hillary Clinton defeated Donald Trump by over 3,000,000 popular votes, but lost in Electoral votes. One side argues “democracy”; the other side argues that it is the United States of America, not the United State of America. The Tenth Amendment grants states’ rights; Electoral College protects that sovereignity.
The Italian constitution says nothing about guns. The Second Amendment of the U.S. Constitution protects the individual’s right to own and possess a gun. The estimate is that there are presently 75 million guns in the U.S.
I saw no explicit statement about free speech in the Italian constitution. In the U.S., the Supreme Court on June 24 struck down a law that prohibited “immoral” and “scandalous” trademarks. The late justice Antonin Scalia observed, “If we stop speech that hurts other peoples’ feelings, the First Amendment will become a dead letter.”
If readers of Italics Magazine want to carry on this conversation, I’m happy to join the mix.
Do you have questions for Mr. Trowbridge? Send us an email at editorial@italicsmag.com