Courts & Congress: America's Unwritten Constitution » (Reprint)

It's often said, confirmed by survey data, that the American people are losing confidence in their government. But the problem may be the reverse-the government has lost confidence in the people. Increasingly the power to make decisions in our democracy has been shifted from Congress to the court system, forcing non-elected officials to make decisions that affect the lives of Americans. In a society which is based on the democratic elections of its officials, this is clearly backwards.

Quirk maintains that what he calls the Happy Convention, an informal and unwritten rearrangement of "passing the buck" of government powers, is done to avoid blame and approval ratings becoming lower for a particular person or party. For example, the Happy Convention assigns the power to declare and make war to the president. Congress and the court play a supporting role-Congress, when requested, gives the president a blank check to use force-the Court throws out any challenges to the legality of the war. Everyone wins if the war avoids disaster. If it turns out badly, the president is held accountable. His ratings fall, reelection is out of the question, congressmen say he lied to them; his party is likely to lose the next election. In this way, Quirk reminds us that the Happy Convention is not what the Founders intended for us. For democracy to work properly, the American people have to know what options they have.

Courts and Congress assigns vast power, even the power to decide presidential elections-to the Imperial Court. The Founders, if you brought them back today would at least recognize the Congress and the president. They would be astounded to read that the courts are in actual peril. They would even less likely understand that the courts are on the ballot. The founders would not appreciate subjecting the judiciary to such partisan political rule; nor claims William Quirk, should it be.

Introduction The "Happy Convention" 1

1 Who is to Decide? 25

2 Guns, Gays, and God - The Happy Convention and the Culture Wars 47

3 The Happy Convention Meets the War on Terror 63

4 The Catechism of the Happy Convention 97

5 The Rise of the Happy Convention 111

6 Life under the Happy Convention 129

7 Current Views - Chief Justice Roberts and Justice Alito and the Happy Convention 153

8 The Happy Convention and the Grizzly Bear 165

9 Can Amending the Constitution End the Happy Convention? 193

Conclusion 209

Historical Appendix A Stripper Statutes Limiting Court Jurisdiction in the 1930s and 1940s 213

Historical Appendix B World War II to 1996 - Stripper Bills Seeking to Limit Court Jurisdiction - None Passed 233

Historical Appendix C Stripper Statutes Limiting Court Jurisdiction Since 1996 257

Historical Appendix D Selected Supreme Court Rulings 283

Selected Bibliography 297

Index 303