Lawless Courts

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At ProgressiveHistorians.com on August 20, "Ahistoricality" offered up an absurd mischaracterization of my argument about judicial review in The Politically Incorrect Guide to the Constitution. This distortion is typical of bloggers’ treatment of books. What one learns from this is that it is a bad idea to criticize a book you haven’t read.

Judicial review, recall, is the American practice of having judges refuse to enforce laws they dub "unconstitutional." This practice was invented in America, and it remained virtually solely American until the 1980s. Although this power had been exercised repeatedly by state judges in Virginia before the federal Constitution was ratified, and although federal judges in lower courts had exercised this power before the Supreme Court did so, the power is usually associated with the Supreme Court’s decision in Marbury v. Madison (1803).

"Ahistoricality" says of my argument that, "His principle argument seems to be that Marbury v. Madison, which established the principle of judicial review, was contrary to the spirit and intent of the constitution." But that is absolutely not my argument.

If "Ahistoricality" knew anything about the Constitution, he would recognize this, as he goes on to quote me as saying, "The chief problem, it seems to me, is that although judicial review was said by the Constitution’s proponents in some states to be among the powers federal courts were intended to have — and thus is legitimate — the people were not told that it would be exercised by federal courts over state statutes. They certainly were not told that under the title of a u2018living, breathing’ constitution, the federal courts would be empowered to disallow enforcement basically of any state statute they disliked."

My chief point in The Politically Incorrect Guide to the Constitution is that while nationalists, meaning people who wanted to destroy the local self-government by elected officials for which the Revolution had been fought, were defeated in the Philadelphia Convention, the model of government that the people were sold has by now been replaced by the defeated model: a centralized one in which a national legislature exercises unfettered power and unaccountable judges’ power grows and grows. Obviously, then, when I note that judicial review exercised by federal courts over federal laws was said by some of the Constitution’s proponents to be part of the system they were advocating, I am arguing for its legitimacy to that extent.

My complaint is with the Supreme Court’s decision in Fletcher v. Peck (1810), in which the Court claimed authority to review state laws for "constitutionality." The progeny of this case have included a plethora of cases in which the Supreme Court has invented various limitations on state legislative authority without actual constitutional justification. Here we have the genesis of the Court’s power to invent "rights" to abortion, homosexual sodomy, one man-one vote, Miranda warnings, secular schools, etc. It is for that reason that I have advocated "reining in" the courts, apparently to "Ahistoricality"’s chagrin.

"Ahistoricality" says of me that, "He seems to be trying to balance state’s rights against the Federalist position (which is dubious, but let’s go with it)." Here, he demonstrates his ignorance of my argument concerning the Federalist position. Contrary to the traditional, Hamiltonian account of the Philadelphia Convention in which the Constitution was drafted and the Jeffersonian Republican Party that dominated federal politics in the first quarter of the nineteenth century, state’s rights were the key to the Federalist position in the ratification debates of 1787—89. If "Ahistoricality" read books before criticizing them, he would know that. (He might find support for this argument in my 2004 Review of Politics essay "Edmund Randolph and Virginia Constitutionalism," too. (Of course, this assumes that "Ahistoricality" actually cares to know the truth.))

He concludes by pontificating that "the fundamental problem with regard to states’ rights isn’t the courts, but Congress, and — to a greater extent now than ever before — the Executive-as-national-daddy. Reducing the role of the courts at a time when Unitary Executive theories are alive in the Administration is a recipe for disaster." Again, this demonstrates "Ahistoricality"’s utter ignorance of the American constitutional system (not to mention of The Politically Incorrect Guide to the Constitution): he had just quoted me decrying John Marshall’s decision in McCulloch v. Maryland (1819), which gave Congress virtually unlimited legislative discretion. How, then, he could turn around and instruct me concerning the real problem in federal-state relations is unclear. If he dislikes lawless executives, well, lawless courts are not the answer; for judges to usurp state legislative authority is not to return to respecting constitutional limits on presidential power.

Kevin R. C. Gutzman, J.D., Ph.D. [send him mail], Associate Professor of History at Western Connecticut State University, is the author of The Politically Incorrect Guide to the Constitution.

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