Judicial Tyranny andrnConstitutional ChangernThe Madison Amendment Processrnby William J. Quirk and Robert M. WilcoxrnWhat one man in America can decide that prisoners inrnSouth Carolina need croquet fields and backgammonrntournaments and order the state to provide them? What onernman can decide that Kansas City schools need Olympic-sizernswimming pools, a planetarium, a model United Nations wiredrnfor language translations, a temperature-controlled art gallery,rnand movie editing and screening rooms, then issue $500 millionrnin bonds to pay for them and double Kansas Cit)’ real-estaterntaxes to pay for the bonds? If you answered, “a federal judge” —rnyou are right.rnThe power wielded by these judges has provoked some remarkablyrnfrank criticisms of the judiciary. Federal judges are arn”robed, contemptuous intellectual elite,” according to RepublicanrnSenator John Ashcroft of Missouri. Ashcroft, chairman ofrna Senate Judiciary subcommittee, said he would hold hearingsrnto examine situations “where the people’s will has been setrnaside by the courts” and to design checks on activist judges.rnRepresentative Toin Delay of Texas wants to impeach judgesrnwho are “arrogantly overriding the people’s will.” Thesernjudges, he notes, have overturned referendums—dealing withrnWilliam Quirk is a professor at the University of South CarolinarnSchool of Law and the author, with Randall Bridwell, of JudicialrnDictatorship (Transaction). Robert Wilcox is an associaternprofessor at the University of South Carolina School of Law.rnimmigration costs, affirmative action, homosexual preferences,rnand school busing—adopted by the people of California, Colorado,rnand Washington. Is Senator Ashcroft right? Have federalrnjudges really become a threat to popular government?rnJudicial taxation is a recent and extreme form of the judiciary’srntakeover of traditional state fimetions. But it is also a symptomrnof an even deeper problem—the virtually imlimited discretionrnof a federal judge to control public officials, and, in sorndoing, consolidate in himself all the ftmetions traditionally performedrnby an entire government. The judge exercises the powerrnto tax and spend in the manner of a legislature and then hiresrnspecial masters with large staffs to execute his wishes in thernmanner of an executive. Is one man supposed to have that kindrnof power? Montesquieu said “virtiie itself has need of limits”rnand that it “is necessary from the very nature of things that powerrnshould be a check to power.” One wonders what Montesquieurnwould think of the following:rn1. The Supreme Court, in its 1990 Jenkins decision (orderingrnnew taxes to finance Kansas City magnet schoolsrnas part of a desegregation plan), foimd that a “court orderrndirecting a local government body to levy its own taxes isrnplainly a judicial act within the power of a federal court.”rnMagnet schools are public schools of voluntary enrollmentrndesigned to promote integration by drawing stu-rn18/CHRONICLESrnrnrn