I have been thinking about government some lately, especially the recent nomination of a new Supreme Court justice. I used to think the Founders made a mistake by including the Judiciary in the government instead of leaving it independent. After some consideration I have arrived at a new conclusion.
The founders really didn't want any government at all. They had seen the inefficient and often deadly effects of government firsthand, and wanted as little to do with them as possible. What they recognized as valuable however was law, the Common Law, the scientifically discovered truths of nature and nature's God regarding law. They valued good judges as researchers in this scientific inquiry. Indeed, the only aspect of government they held in value at all was the Judiciary!
So, in a sense, the Founders were not trying to develop a government that was held on check by the Judiciary. Rather, desiring a safe future for justice, and an expectation of better relations among men due to clearer and more efficient laws, and a hope of greater prosperity as justice is administered more regularly and efficiently, our founders built for themselves a government for to house the judiciary!
Many conservatives today are complaining about the treatment of Judge Roberts during confirmation hearings. "Poor Mr. Roberts is having to give an account of his opinion on every policy issue, and that just isn't fair! It shouldn't be the judges who are setting policy, but the legislature, so who cares what his opinions on policy are? All the man has to do is read the Constitution and make sure that all new laws are Constitutional." Hmm...
The founders really didn't want any government at all. Just a safe place, a house if you will, for the Judiciary. Legislators didn't abide by this philosophy for very long however. Presidents Washington and Adams did a pretty good job of maintaining the proper scope of government, but Mr. Jefferson was always more adept at formulating good political theory than in executing it.
Bastiat makes a good argument that only when the law has been compromised does politics become interesting. If the law is simply doing what the law should do (protecting property, liberty, life, and enforcing contracts) then there is little incentive for politicing. No one could thus gain a "political advantage" over anyone else. All politicing is created by the incentive of gaining political power, "control of the blackjack" Mr. Mayberry calls it.
And such is the case with poor Mr. Roberts. All the politicians are so concerned about Mr. Roberts because of what threat he poses to their own degree of political power. The truth is that none of them should have ant of that power in the first place. The arguments are shifted to discussions about dozens of particular policies that should not exist in the first place, but are merely tools in the hands of future tyrants being used to gain political leverage.
What really strikes me as funny is that most of these aspirants want to be president someday, and as such the most powerful man in America. Fewer of them realize that Judge Roberts is so much closer to the Most Powerful Man in America position: Chief Justice of The Supreme Court.