Thursday, July 21, 2005

Taking the Constitution away from the Courts:

My Dad once observed that the extreme left and the extreme right sometimes go so far to the extreme that they meet and agree on a number of points. This notion, posited by Mark Tushnet, law professor at Georgetown University, and who is pretty far to the left, may be one such example. Like Robert Bork, he's for abolishing judicial review -- Taking the Constitution Away from the Courts as he puts it -- and leaving ultimate questions of constitutionality up to the legislatures.

Of course I think this is a terrible idea...but, as Tushnet demonstrates, there are good reasons why "Progressives" might support such an idea. Many progressive gains (arguably more of the economic gains, than the cultural ones) have been made by the legislatures.

The democratic belief in the people's judgment is confirmed by the important legislative achievements of modern democracy. One T-shirt sold after the 2004 election listed what the Democratic Party has accomplished: "Equal Pay. Equal Rights. 40 Hour Work Week. Social Security. Medicare. Clean Water. Clean Air. Safe Food. Freedom of Speech. Voting Rights." All but the last two were achieved primarily through legislation, and some-the social welfare achievements of the modern state-had little connection to the Supreme Court, except when it obstructed them.

Also, if the Court becomes more in sync with the original meaning of the Commerce Clause and the Constitution's doctrine of enumerated powers, many of these progressive gains are ripe to be struck down by an active albeit originalist Court.


John said...

But then on the other hand. progressives, I think need the courts to be in the role of a guarantor of individual rights. I for one, don't trust the legislatures as far as I throw them.

I'll gladly trade an expansive view of the commerce clause for a court that interperets the bill of rights as a brake on the government's power.

If I have to choose.

I want both, but that doesn't seem to be in the cards.

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