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Legislative Restraint:
In the thread about "judicial negation," a commentator raised the remarkably resilient myth that judicial review was created or invented in Marbury v. Madison. For those who are interested in the evidence on this question, I offered my article, The Original Meaning of the Judicial Power. Andrew Hyman of ConfirmThem.com agrees, offering Hamilton's argument from Federalist 78 that the evidence shows was a commonplace view at the founding:
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
Andrew then makes the following interesting observation:
Of course, the Supreme Court has long since abandoned Hamilton's test of "irreconcilable variance" in favor of a test resembling "plausible variance." In other words, it's not judicial review that's truly controversial, but rather the manner in which it's exercised.
While, there is much to be said about this, let me offer the following thoughts. First, though the evidence of this is far more fragmentary than that which establishes the power of judicial nullification, from my reading, judicial deference as exemplified by "Hamilton's test of 'irreconcilable variance'" was probably the dominant view. The fact that Jefferson too articulated this view as Secretary of State in the context of the debate over the national bank, which he opposed and Hamilton supported, is evidence that the view was commonly held. Second, while Hamilton's statement precedes the Constitution, after ratification, this degree of deference corresponded to lengthy and very serious debates in Congress over the extent of its constitutional powers--most notably during the first major constitutional controversy involving the first Bank of the United States. Third, judicial deference seems to have persisted up until the Progressive and Populist movements began to undermine the American commitment to broad liberties of the People and limited legislative powers. Fourth, when judges who had been trained in the previous culture of legislative restraint confronted manifestations of the new "Progressive" and "Populist" philosophies of agressive governmental solutions to "social problems" they resisted by becoming somewhat less deferential. Fifth, this less deferential stance by judges was overcome by the political triumph of Progressivism in the form of the New Deal, and judicial appointments by President Roosevelt, ushering in a period of judicial deference on matters of constitutionality in the face of legislative activism.

One way of framing the issue of judicial deference is to ask: "deference to what?" Many mean "deference to the policy judgment of the legislature." With that proposition few disagree. But what the debate is also about is deference to the constitutional judgment of Congress that a particular act is within its powers. When Congress was exercising "legislative restraint" by considering itself bound by limited and enumerated powers, its judgment on this question may have merited the deference showed to it by Hamilton, Jefferson, and others as well. But when Congress has abandoned any sense of constitutional limits, then there would seem to be no real judgment of constitutionality to which to defer. In this, Congress has been aided and abetted by the post-New Deal Supreme Court and by law professors who would take judicial power even farther than the New Deal justices actually did.

The next question is whether an originalist is committed to the attitudes of the founders towards judicial restraint, in the face of legislative activism that took 100 years to develop. The answer to this question is worth debating and raises tricky methodological issues. I, for one, do not think we are bound by such an unwritten doctrine. Deference is a prudential doctrine that assumes there is a judgment to which to defer. When that assumption proves false, the doctrine (which is really no where in the Constitution) may be altered. In my book, Restoring the Lost Constitution, I propose adopting a "presumption of liberty" by which the burden is placed on Congress to establish that its laws are truly "necessary and proper"—what it used to debate but no longer. I think experience with the scrutiny given laws governing the freedoms of speech and press strongly suggests that Congress will be more circumspect if courts are less deferential. Paradoxically, this would result in a congressional judgment of constitutionality to which courts could defer. But the New Deal experience teaches where courts give Congress carte blanche, it will push beyond any limits contained in the written Constitution. If this is right, then legislative activism is itself a product of judicial restraint on the issue of congressional power. The result of this judicial abdication is a fundamental alteration of our constitutional order without benefit of constitutional amendment. (Civil comments only please.)
johnt (mail):
And to who of late does the Supreme Court defer to? Much is mentioned of Congress but a cursory glance at, for example, the fourteenth amendment and the reapportionment cases, would indicate that more than Congress is at stake and there's more than one bull loose in the china shop.
An argument on behalf of restraints on an errant Congress is quite appropriate but as things stand now the Court is the branch that exercises the most untrammled power,allowing for internal divisions. And as such divisions exist by the nature of it's structure so they exist in Congress as well, which is to say that, including the presidential veto, there are more restrictions on Congress then the Court.
Consider also the limitations of the Presidency and we end up with one branch not equal but superior.
5.20.2006 12:11pm
Mahlon:
Although I prompted this post, it was through a misstatement. I originally stated that judicial review was "created" in Marbury. Poor choice of words. It would have been better to say that the concept of judicial review was first officially recognized in Marbury. It is the first place in American law where the power/duty was defined.

That the power exists, I do not debate. That it is properly exercised, I do not believe. But I am a lowly street lawyer. Such lofty debate is beyond me. But I do have an observation.

I recently heard oral argument at the SCOTUS which dealt with a the Federal Employee Health Benefit Act. The Chief and Nino, in particular, were rather peeved by the poor job Congress did in drafting the statute originally. They were even more peeved in realizing that when Congress amended the particular provision at issue, it made that provision even more ambiguous. Scalia was thus prompted to decry, "It's left to us to clean up this mess!"

Of course, you can also look at the new bankruptcy law to see just how poor a job the legislature is doing in crafting law. I know judges who are pulling out their hair trying to glean what in the hell they are supposed to be doing.

Although not directly related to the constitutional deference point, I think that the quality of the Congressional enactments is symptomatic of the same problem addressed by Prof. Barnett. Congress has come to hold the view that it has the final word, no matter how nosensical that word may be, and no matter what the topic. Worse, it views the judiciary as a "whipping boy," to do its bidding or be castigated simply for exercising "Judicial powers." Deference has been twisted into carte blanche.

Of course, poor legislative drafting forces the Courts to start making up stuff to fill the gaps in statute. This, in turn, gives rise to new allegations of "judicial activism."
Instead of putting down its collective foot, the judiciary has played along, bowing to the wishes of Congress without acknowledging its duty.

If the Courts start knocking down some statutes and stop deferring so much, Congress will have little choice but to reform. Maybe it will even start paying attention to how it drafts laws. This should, of course, make the Court' jobs easier, which would alleviate docket backlog. It would also mean that personal opinions of judicial nominees would less likely to come into play in cases, meaning the nomination process would be quicker and less political, meaning Congress would have even more time to spend on careful drafting.

Wow . . . think of it!
5.20.2006 12:21pm
Tacitean (mail) (www):
Johnt,

That the judiciary is now "superior" - or is perceived as such - owes a lot to the broadly deferential attitudes previously in place. That is, it's only natural that any restraint on the various Legislatures would seem to imply judicial superiority, especially after the "carte blanche" expansion of Legislative powers over the past 70 years.

Indeed, Professor Barnett himself says "...If this is right, then legislative activism is itself a product of judicial restraint on the issue of congressional power." Would it not logically follow that judicial activism is a reaction those slack attitudes?

The cure, then, is to get us back to the status of the original Republic: where Congress debates the necessity and propriety of its laws before passage, and the burden is always on them to prove liberties will not be harmed.
5.20.2006 12:27pm
Andrew Hyman (mail) (www):
A few notes in response to the post.

I agree with Professor Barnett that courts are not "bound by ... an unwritten doctrine" of deference to Congress or state legislatures, but by the same token they are not bound by the reverse doctrine that says the courts must evaluate all legislation for being "necessary and proper." Invoking the Necessary and Proper Clause to restrain all congressional action is not plausible, because that Clause is an additional grant of power to Congress, rather than a limitation on powers previously granted (Marshall recognized this in McCulloch v. Maryland). For example, the powers granted to Congress over the District of Columbia are plenary, and are not limited at all by the Necessary and Proper Clause. Likewise, if Congress is directly regulating interstate commerce, it need not invoke the Necessary and Proper Clause. Furthermore, Madison was even against empowering the courts to delve into the necessity and propriety of laws passed under the Necessary and Proper Clause (e.g. when Madison introduced the Bill of Rights in Congress, he explained that Congress rather than the courts will be the judge of what is "necessary and proper").

I also really don't like Professor Barnett's notion that the courts should review legislative history to ensure that Congress amply debated constitutional issues. If judicial independence means something, then so must legislative independence. Many legislative discussions occur off the floor, and I'd hate to see the courts start choreographing the debate that must occur on the floor. The test ought to be whether a statute is constitutional, rather than whether Congress discussed whether it was constitutional. They should discuss that in their own way, but let's ease off the compelled speech.

I also disagree with Professor Barnett that, "the New Deal experience teaches where courts give Congress carte blanche, it will push beyond any limits contained in the written Constitution." I don't think the New Deal ought to be rolled back, or that cases like Lochner should be overturned. The New Deal helped get us out of the Great Depression, and is an integral part of how our government now functions. Cases like Lochner were gross distortions of the Constitution (in that case the twisted Clause was the Due Process Clause), and it was the Court that exercised carte blanche. I do agree with the Court's recent federalism decisions, such as the one declaring that Congress has no power to infringe the right of a person to carry a gun near a school throughout the fifty states. But such a decision can be reached by the courts without any "presumption of liberty." The federal statute in question was in irreconcilable variance with the Tenth Amendment (and with the Ninth).

Fundamentally, the question of how to resolve the tension between judicial and legislative activism is in the hands of Congress, rather than the Supreme Court or us pundits, as I mentioned in the recent thread on "negation." Anytime it wants, Congress has power to affirm judicial authority to strike down state and federal statutes as unconstitutional, while also requiring that, if there is no irreconcilable variance between a statute and the intended meaning of the Constitution, then seven justices must concur in the exercise of judicial review. If Congress were to do that, then legislators would receive more deference from the Supreme Court, unless seven justices say "no."

Contrast this with Professor Barnett's solution. He says that the Court should show minimal deference to legislators who pass a statute while (A) failing to debate their constitutional power, and while (B) simultaneously infringing upon individual liberty. I respectfully submit that this is an unworkable and inadvisable strategy. First, it says absolutely nothing about the deference that courts should give to state legislators, who do not derive their powers from the Constitution. Second, it would set the courts up as choreogrophers of congressional debate, which is hardly consistent with the indpendence of the legislative branch. Third, it would get the courts in the business of deciding which are the liberties that they prefer, and which are the liberties that they're willing to stomp on; that may be easy where the liberties in question are the liberty to be free from pollution versus the liberty to pollute, but our society has many conflicting liberties that are much more severe than that. And even where liberties are not in conflict, I don't think that the courts should be in the business of determining, for example, that infringements on the right to polygamy or the right to prostitution are fine, whereas other infringements are so horrible that we must ignore Hamilton's "irreconcilable variance" test.

In any event, as I said, the decision ultimately rests with Congress. Congress can say (and has said) how many justices there are on the Court, Congress can say (and has said) how many justices are required for a quorum, and Congress can say (and should say) how many justices are needed in order to depart from Hamilton's standard of "irreconcilable vairance."
5.20.2006 12:39pm
Andrew Hyman (mail) (www):
Should say: "cases like Lochner should be restored."
5.20.2006 12:43pm
Mark White (mail) (www):
The 9th Amendment underpins the presumption of liberty, as Randy has noted elsewhere. When the federal Legislature usurps ungranted powers, it steals powers the People (via the 9th) and the States (via the 10th Amendment) reserved for themselves. When the Judiciary abandons its loyalty to the superior powers of the People and the States, its loyalty to the Legislature's inferior powers upsets the whole plan for the Republic. Benjamin Franklin was right to wonder if we could keep the Republic the founders created.

A good Anglosphere principle to remember is that the Common Law permits the sovereign People what it doesn't prohibit, while it prohibits the servile Government what it doesn't permit. Teddy Roosevelt came to the Executive determined to follow his own will, asking himself "What's stopping me?" and answering, incorrectly, nothing. When he was a private citizen, nothing was. But as a American Government official, his powers were strictly limited to what his sovereign had granted.

Had he been in a Roman Law country, where the State reigns supreme over the People, then nothing would stop him. The Roman Law prohibits the People what it doesn't permit, and permits the Government what it doesn't prohibit. For Teddy, 'L'etat, c'est moi' was the operative principle, and while he used it to try to improve things, he didn't adequately take into account unintended consequences. His Pure Food and Drug Act has morphed into a regulatory bureaucracy that limits the American people to a few dozen new medications a year when biotechnology could offer thousands. But then, none of the founders thought to include a soveriegn People's right to take their own health care decisions as an explicit point in the Bill of Rights. They figured the 9th Amendment had it covered.

Thank God we've got a scholar like Randy Barnett to chart a course towards the Restoration of Constitutional Rule. Now if God will grant us an attentive People, perhaps we can defeat the tyranny of the gerrymanders where politicians choose their voters so they can continually enjoy their unlimited powers.
5.20.2006 12:43pm
PersonFromPorlock:
Mahlon:

Scalia was thus prompted to decry, "It's left to us to clean up this mess!"

There speaks the activist spirit. The Court's actual job is to declare such laws unconstitutional for failing to provide due process, and to leave the Congress to write a new law if it so desires.
5.20.2006 1:00pm
Mahlon:
PersonFromPorlock - I think that was my point exactly. Scalia was purely frustrated that the Court was left holding the bag, and also knowing the votes weren't there to throw the whole damned thing out and force Congress back to the drawing board.
Do you think for minute Scalia wouldn't love to do just what you propose? Let's see how he holds before you chastise him for a comment during argument.
5.20.2006 1:24pm
Norman Rogers (mail):
It's all well and good to find an Originalist's stance on Judicial Review, but the question of the day is what deference the Executive and Legislative branches should give to the opinions of the Judicial branch?

To Wit: The President, Senators, and Congressman all swear to protect, defend, etc -- the Constitution of the United States.

Indeed, the Presidential oath is written into the Constitution. In no way is the President bound to the opinions of nine old lawyers who happen to inhabit the Supreme Court. Nor are our elected representatives bound to the dictates of our unelected Justices.

Does "Dred Scott" ring a bell?

As I was taught in my high school civics course, the checks and balances in our Federal government work as follows:

Only the House of Representatives can initiate a revenue bill.

Only the Legislative Branch can write laws.

The President can veto legislation, but that power can be overriden by a two-thirds vote by both houses.

The House of Representatives can vote to impeach the President. Two thirds of the Senate are then required to convict the President and remove him from office -- at a trial presided over by the chief Justice of the Supreme Court.

The President can choose to not enforce a law or a decision of the Supreme Court (Dred Scott). Congress can impeach the President. Congress can also not appropriate monies.
5.20.2006 1:25pm
JunkYardLawDog (mail):
Andrew Hyman


The New Deal helped get us out of the Great Depression, and is an integral part of how our government now functions.



I'm not so sure the New Deal helped to get us out of the Great Depression all that much. World War II and all the economic activity associated with producing goods and services for the war is likely the far greater influence on ending the great depression or ending the effects of the great depression in the USA. I believe at the time WWII began that while some recovery in the economy had been made from its lowest points in the great depression, the levels of prosperity and economic activity had not returned to the peaks reached prior to the 1929 crash. Am I wrong?

Says the "Dog"
5.20.2006 1:26pm
Interested:
Andrew Hyman wrote:


I don't think the New Deal ought to be rolled back, or that cases like Lochner should be overturned. The New Deal helped get us out of the Great Depression, and is an integral part of how our government now functions.


That argument seems circular to me. "The government should function this way because that's the way it now functions."


Third, it would get the courts in the business of deciding which are the liberties that they prefer, and which are the liberties that they're willing to stomp on.


Is having the legislative or executive branches deciding which liberties they prefer, and which liberties they're willing to stomp on the preferable alternative? One reason for appointing Justices and Judges long term is that it attempts to de-politicize them, and thus put them in a better position to make such ultimate decisions regarding the meaning of the Constitution.
5.20.2006 1:31pm
SCOTUS lawyer (mail):
Let's be realistic for a second: Checks and balances make Randy's dream essentially impossible to achieve.

If the Courts started enforcing what Randy believes is the "real" Constitution, most of the federal government would be struck down and the public would think it outrageous. The public WANTS that big government, even if Randy doesn't. So either a) a quick constitutional amendment would be passed getting rid of federalism officially, or b) the cases would be overruled more slowly because the President would refuse to nominate (and the Senate would refuse to confirm) someone who believed in Randy's view.

Either way, we would come back to pretty much what we have today. So Randy's view is a fun theory to play "pretend" with, but it has no particular connection to reality.
5.20.2006 1:33pm
Angus:

The President can choose to not enforce a law or a decision of the Supreme Court.


Ask the Cherokee how that worked out in protecting freedom.
5.20.2006 1:36pm
Andrew Hyman (mail) (www):
Dog, World War II helped the economy too.

Mark White, are you saying that either the Ninth Amendment or the Due Process Clause carves out an exception to the power of Congress to regulate interstate commerce in pharmaceuticals? On the DC Circuit, Judge Douglas Ginsburg seems to have that impression, but Judge Tom Griffith's minority view is correct.
5.20.2006 1:40pm
Andrew Hyman (mail) (www):
To the commenter named "Interested":

As previously mentioned, I meant to say the following.


I don't think the New Deal ought to be rolled back, or that cases like Lochner should be restored. The New Deal helped get us out of the Great Depression, and is an integral part of how our government now functions.



The second sentence is a mere statement of fact, rather than an argument. My next sentence was "Cases like Lochner were gross distortions of the Constitution (in that case the twisted Clause was the Due Process Clause), and it was the Court that exercised carte blanche." That's the argument I was making.

You ask, "Is having the legislative or executive branches deciding which liberties they prefer, and which liberties they're willing to stomp on the preferable alternative?" Generally speaking, the executive branch should not decide such issues. It's generally for the legislative branch to decide, subject to the exceptions in the Constitution. Of course, you're correct that judges should make "ultimate decisions regarding the meaning of the Constitution." However, I don't believe that the Constitution was meant to enforceably protect any unenumerated rights beyond the residual rights that flow from having a government of enumerated powers.
5.20.2006 1:58pm
magic (mail):
SCOTUS Lawyer:


If the Courts started enforcing what Randy believes is the "real" Constitution, most of the federal government would be struck down and the public would think it outrageous.


But it is entirely possible to pull this off -- to reign in the government and return it to its original imagined form. I know doing it in one massive sweep would be impossible. Of course, people satisfied with the current setup would oppose a move like this and keep changes from going forward. (Really the only way to do this fast would be to topple the government, but that's messy and I imagine even originalists would oppose that.) If we take our time -- elect Presidents and Congressmen who have a good sense of what they are and aren't allowed to legislate on, and support justices willing to back this up in their decisions -- we can begin to introduce incremental changes shifting our government back towards a smaller state. It is entirely possible, and it can be done without frightening the people of the US and damaging the stability we've enjoyed for over 200 years.
5.20.2006 2:26pm
Mark White (mail) (www):
Congress was granted the power to regulate interstate commerce -- i.e., to regulate the tariffs and regulations that states can impose on products and services coming from outside of their state. Congress wasn't granted the power to say what products and services should be in commerce inside a state or among the several states. That would be an unacceptable intrusion into the sovereignty of the People and the States.

What ended the Great Depression was the huge increase in new products, services, and processes introduced as a result of all the research and development brought on by WWII. New products, services, and processes are constantly needed to counteract the decrease in employment that occurs as learning curves let firms make old products and services with better processes requiring less labor. The Great Depression was brought on by a relative dearth of new products and services in an economy enjoying galloping increases in productivity thanks to fractional horsepower electric motors. It was alleviated when many innovative civilian products and services came out after the war. (See Rick Szostak's Technological Innovation and the Great Depression.)

If Congress quit regulating the products and services in commerce among the several states, we'd see a burst in technological innovation in the medical field that would make it seem by comparison that we'd been living through a mild recession in these past few years. Would all these products be harmful and ineffective? Not if trial lawyers and insurance companies have any influence on the industry. With an expanded ambit for Underwriter's Laboratories, we'd be no more likely to suffer from dangerous pharmaceuticals than we suffer from dangerous electrical appliances.

And, we'd be living much better by enjoying our own natural liberties that our founders tried their best to protect for us.
5.20.2006 2:26pm
JunkYardLawDog (mail):
This thread and the related one on "Negation" makes me want to ask this question of Professor Barnett and everyone here:

Question: Can the Supreme Court Make An Unconstitutional Decision??


I think everyone here would agree that the Executive Branch of government can take unconstitutional action and that the Legislative Branch can pass unconstitutional statutes. So if its clear that 2 of the 3 co-equal branches of government can do unconstitutional things in the exercise of their primary functions, why would it make sense to think that the third branch of government, the Judicial Branch, is immune from taking unconsitutional actions in the exercise of their primary function.

Please note that the above question is separate from other questions like: How do you determine if a specific Supreme Court decision is unconstitutional? or What are the specific method or methods available to the people or the other branches of government to oppose an unconstitutional decision by the Supreme Court? It is easy to confuse these kinds of questions with the one above.

I'm just wondering what people's opinions are on the above question and why. My feeling is that there is nothing infallible about the third branch of government just as there is nothing infallible about the other two branches. So I see no reason why the Supreme Court can't make an unconstitutional decision. In fact I think there are numerous examples in the history of the court where they have done exactly that.

Asks The "Dog"
5.20.2006 2:47pm
Brett Bellmore (mail):
the cases would be overruled more slowly because the President would refuse to nominate (and the Senate would refuse to confirm) someone who believed in Randy's view.


Actually, that's how we got here in the first place, the other two branches deliberately following a policy of filling the judiciary with judges who wouldn't enforce limits on their power. The occasional judicial usurpations are merely a side effect of picking judges who see nothing wrong with Congress and the President usurping power... Such people tend to want to get into the game themselves.

The REAL origin of the problem, of course, is to be found in the 17th amendment. Prior to that the judiciary were unlikely to give the federal government undue deference, simply because they'd all be confirmed by a Senate of state appointees, looking out for the interests of the states.

I see little prospect of reversing the process, and returning to a judiciary that enforces the Constitution, so long as we continue to have Presidents and a Senate who don't WANT it enforced, and who will staff the judiciary accordingly.
5.20.2006 2:55pm
Joel B. (mail):
There is I think a fundamental flaw in all this the idea that judicial negation is acceptable, and we find that later in Federalist #78, where we read

"The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it proved anything, would prove that there ought to be no judges distinct from that body."

The question becomes are judges/justices exercising judgment or will, and quite frankly it seems like with regard to many instances where laws are struck down, it seems to be an exercise of will, that there can be little conceivable basis for striking down many laws, yet the court does so. So the question becomes does this not suggest that the time is coming when "there ought to be no judges distinct from that body."
5.20.2006 3:06pm
JosephSlater (mail):
Interesting piece. First, who gets to decide when/if "Congress has abandoned any sense of constitutional limits?" And what would evidence for that be? Is it the total amount of Congressional Record space taken discussing the Constitutionality of bills? Or is it an interpretive judgment of the quality of that debate, perhaps with the underlying thought that the pre-New Deal Court was more correct about at least some parts of the Constitution than the post-New Deal Court, and Congress's failure to recognize that means Congress should get less deference? It's something else, I hope, because neither of those seem like workable standards.

Also, while R.B., whose writings and intellect I respect greatly, doesn't actually say that this would lead to reversing New Deal precedents, obviously some in the same broad camp (after AALS I won't say "constitution in exile") think/hope that's where this is going.

To those folks, I think SCOTUS Lawyer is right. Whatever the clever theories of constitutional interpretation, the NLRA, FLSA, Civil Rights Act of 1964, and other major pieces of national legislation are not going away, unless there is a massive *political* shift among the population rejecting such laws/Congressional powers. And there's no evidence that such a shift is likely or even plausible. The S. Ct. doesn't exactly follow political trends all the time, but I don't think it's realistic to hope (or fear) that the S. Ct. is going to return to the privileging of the rights of business owners and rejection of regulations on same that the U.S. (and pretty much the entire industrialized-democratic world) has soundly rejected for over half a century in both political and legal arenas.
5.20.2006 3:20pm
Andrew Hyman (mail) (www):
Mark White, I don't think I've every seen such a narrow interpretation of congressional power to regulate commerce, as the one you just offered:

Congress was granted the power to regulate interstate commerce -- i.e., to regulate the tariffs and regulations that states can impose on products and services coming from outside of their state. Congress wasn't granted the power to say what products and services should be in commerce ... among the several states. That would be an unacceptable intrusion into the sovereignty of the People and the States.


Unacceptable to you maybe, but not unacceptable to the people who founded this country. I always recall that political cartoon from the Jefferson administration of the hideous monster: the "O-GRAB-ME." Spell it backwards, and apply it to every ounce of products and services entering or leaving the United States, and you will gain a better understanding of how the framers construed the word "commerce."
5.20.2006 4:36pm
jvarisco (www):
How would you reconcile the Alien and Sedition acts - supported many of the very people who designed the constitution - as including presumption of liberty? I don't think that Hamilton believed in any such thing; in fact he would have been happier with an elected monarch. It is true that the Federalists lost out - but to suggest that their opponents were more "originalist" seems disingenuous at the least.

I also don't see how you can differentiate judicial nullification from legislation, unless you have an extreme hostility to government in general. I don't think anyone except Jefferson had that, and he was hardly mainstream - he supported the french revolution! The decision as to what is permitted is just as important as what is not; the Lawrence decision was important not because it removed a law (as it was hardly being enforced) but because it basically involved the government granting sexual orientation protected status - status which appears nowhere in the constitution and would have been unthinkable to the framers. No one believes that all discrimination is wrong; we can discriminate against pedophiles, and murderers, and bank robbers; until Lawrence was repealed, to the government, sodomy was no different. For the courts to make a sweeping social declaration like that can only be seen as legislation.
5.20.2006 4:40pm
Cornellian (mail):
Indeed, the Presidential oath is written into the Constitution. In no way is the President bound to the opinions of nine old lawyers who happen to inhabit the Supreme Court. Nor are our elected representatives bound to the dictates of our unelected Justices.

His oath applies to the entire Constitution, including the provision stating that the judicial power of the United States is vested in the Supreme Court, not in the President or in Congress. And what does their age have to do with it?
5.20.2006 5:08pm
johnt (mail):
Tacitean, I believe, and the record of the last few decades should warrant this,that there is much more to judicial activism than a reaction to Congressional misdeeds and overreach. So that it is not merely a reaction to such and there is precious little need for reading the tea leaves of implication. I did mention two broad areas where the Court has struck out on it's own, you might say clearing new pathways, without any assistance or motivation supplied by Congress.
I am in enthusiastic agreement with your last papragraph, the question that hangs over us is, but where does that leave the Court? Or is it only Congress that returns to restraint, moderation, and prudence.
There are remedies but that would be another thousand words.
5.20.2006 6:44pm
Cornellian (mail):

"The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it proved anything, would prove that there ought to be no judges distinct from that body."

The question becomes are judges/justices exercising judgment or will, and quite frankly it seems like with regard to many instances where laws are struck down, it seems to be an exercise of will, that there can be little conceivable basis for striking down many laws, yet the court does so. So the question becomes does this not suggest that the time is coming when "there ought to be no judges distinct from that body."


Not at all, the Constitution already provides a simple and straightfoward solution. The president nominates judges and the senate confirms them. If they don't like the decisions of the supreme court, they can appoint different judges. It's not a fast process, and not something that gets decided in a single vote (since you need a president and a majority of senators) but then a process that amounts to a mandatory period of reflection doesn't strike me as a bad thing.
5.20.2006 7:09pm
M. Simon (mail) (www):
A local assistant DA said in 2001 or '02 that the docket backlog locally is due in the main to enforcing drug prohibition. She saw no way out.

All to fight a phantom menace.

Is Addiction Real?
5.20.2006 8:16pm
Mark White (mail) (www):
Well, if you give Congress an inch on anything, they're sure to take a mile.
5.20.2006 10:49pm