Abolishing America, cont`d: Consent Decree Coup

While American neoconservatives use
“the war on terror” to impose democracy on the Middle
East, two New York Law School professors urge us to
rescue democracy here at home. In a

newly released book
from Yale University Press,

Democracy by Decree

Ross Sandler

David Schoenbrod
show how the plaintiff`s bar and
judges have used consent decrees to take government away
from elected officials.

The two law professors know of what
they speak. The careers of both as “public interest”
attorneys contributed to creating the situation which
they now deplore.

Rule by coercive court decree
originated with the public school desegregation case,

Brown v. Board of Education
Prior to this case,
reform relied on persuasion, a balancing of contending
interests, and appeals to public opinion. Brown
inaugurated a new era of reform coerced by

class action lawsuits
and judicial decrees.

The result, according to Sandler
and Schoenbrod, is that law in the U.S. is no longer
accountable to the people, because state and local
governments have lost both legislative and
administrative powers.



–indeed, practically the entire range of


public institutions–are actually controlled
by attorneys and

, not by governors, mayors and the voting

A number of constitutional and
political developments combined to create an environment
that enabled
judicial coercion
to push aside persuasion and the
legislative balancing of interests. The

Seventeenth Amendment to the Constitution
for the direct election of senators and terminated the

constitutional function
of the U.S. Senate, which
was to protect the states from a central government
overlord. The

New Deal
destroyed the

“enumerated powers”
limit which the Supreme Court
had placed on Congress` authority. The rise of national
interest groups and cause oriented politicians destroyed
the political party coalitions of federal, state and
local legislators.

In 1963 the

Ford Foundation
funded the first public interest law
firm. By 1967 the federal Office of Economic Opportunity
had funded 300
local legal services organizations
and a dozen
national law reform centers.

Numerous private “public interest”
law firms sprung into existence. Many, such as the
Environmental Defense Fund and the Children`s Defense
Fund, are now household names. Over a wide range of
issues, reform moved from legislative bodies to the
courtroom. Judges became legislators in response to
their “public” –class action attorneys.

The reform revolution is so
complete, write Sandler and Schoenbrod, that lawyers
today are enculturated with the belief that


are achieved only through judicial coercion.
The revolution gave public power to

private attorneys
, who are able to impact citizens`
lives more forcibly than the people`s elected

Sandler and Schoenbrod write that
“the basic premise of democracy by decree is that
government can be made more compassionate only if judges
impose their will on elected officials.”
The reform
revolution has destroyed the separation of powers and
the American model of democracy.

Sandler and Schoenbrod offer
measures that they believe would restore politically
accountable law, but American democracy might be too far
gone. The will to fight has departed from legislative
bodies, and the American people are distracted and
uninformed. Legislators, mayors and governors have
learned that they can avoid making political enemies by
letting judges decide divisive issues.

Judges are so accustomed to
legislating in response to interest groups that they
routinely set aside democratic outcomes. Legislating
from the bench was once confined to high-profile state
or regional desegregation rulings. It now invades local
zoning ordinances. Recently in Walton County, Florida, a
local judge,

William F. Stone
, legislated justice for a developer
by throwing out the county`s compatibility standards for
real estate development.

The standards barred the developer
from erecting a multi-story condo building in a
community of single family houses. The judge dismissed
the compatibility requirement on the basis of his
personal opinion that the compatibility standards were
“vague” and that the county commissioners had used
“subjective judgment” when they voted down the
developer`s project.

Local attorneys believe that Judge
Stone over-reached his judicial powers. The county
commission had followed the recommendation of the county
planning commission, which after a public hearing
rejected the project on compatibility grounds. At the
public hearing the local community had presented
extensive photographic evidence of the existing
character of the community and argued convincingly that
the proposed project would so alter the character of the
neighborhood that the definition of compatibility itself
would change.

The only issue was whether high
density condos are compatible with a unique community of
low density single family homes. What the public wanted
and law provided meant nothing to the judge, accustomed
as judges are to ruling like Roman emperors.

If we export our broken down
version of democracy to Iraq, Iraqis might see
similarities between their old and new governments.

Craig Roberts is the author with Lawrence M. Stratton of

The Tyranny of Good Intentions : How Prosecutors and
Bureaucrats Are Trampling the Constitution in the Name
of Justice
. Click

for Peter
Magazine interview with Roberts about the recent
epidemic of prosecutorial misconduct.