Making the Supreme Court Safe for Democracy


This next conversation is with Joshua Hawley, a former clerk to Chief Justice John G. Roberts, Jr., and an associate professor of law at the University of Missouri, about the arc of power exercised by the Supreme Court since the passage of the 14th Amendment. In one sense, we understand directly what the Antifederalist Brutus once opined about its potentially unlimited powers. The Court, Brutus informed, would be the most dangerous branch because its judges “are independent of the people, of the legislature, and of every power under heaven.” Of course, criticisms of the Court’s activism are now part of our political discourse. Indeed, how could they not be given the Court’s performance in any number of decisions?

But where does a revival of a limited judiciary begin? Less noted amidst talk of judicial methodology and interpretation that fills our discourse on constraining the judiciary is that our written Constitution is rooted in the principle of self-government and is, ultimately, the people’s document to be interpreted by their voices and practices. Its political structural principles of federalism and separation of powers seem to commend a competitive politics that is largely free of substantive judicial intervention. So, how to get there from here? For that, you will need to listen to Hawley discuss several ways a more targeted focus on self-government might challenge the Court’s self-understanding of its expansive powers.

Friday Roundup, March 8th

  • This month’s Liberty Forum features a lead essay by the sage of Malibu, Gordon Lloyd, on the constitutional liberty of the Antifederalists. Excellent responses from Adam Tate and Ken Masugi follow and greatly add to the discussion. That’s right, capital ‘A’ because as Lloyd argues they are coherent and relevant. We need their wisdom now more than ever. “The constitutional impediments to the completion of the Progressive national democracy project actually rest on promoting the Antifederalist rather than the Federalist features of the Constitution and Bill of Rights.” Lloyd disentangles our understanding of the Antifederalists from the scholarship on the Antifederalists that tends to make it impossible to understand them in their original voice, relegates them to an insignificant past, or disputes the very credibility of their arguments. Lloyd argues:

When we hear the claim that our representatives operate independently of the people, and that Congress fails to represent the broad cross-section of interests in America, we are hearing an echo of the Antifederalist critique of the potentiality of the representation system. When we hear that the federal government has spawned a vast and unresponsive administrative bureaucracy that interferes too much with the life of American citizens, we are reminded of the warnings of the Antifederalists concerning consolidated government.  They warn that, in effect, executive orders, executive privileges, and executive agreements will create the “Imperial Presidency.” And they warn that an activist and independent judiciary will undermine the deliberate sense of the majority.

To many Americans, at least, his patriotic nationalism, his efforts to establish a system of national parks, and his assertion of American exceptionalism qualified him for inclusion on Mount Rushmore. . . . However, of the many studies to appear in the last fifteen years, none has made a thorough assessment of his political thought and action as it related to those he claimed to admire most: the founding generation, especially the authors of The Federalist and Abraham Lincoln – who Roosevelt cited early and often in his political career.

Fortunately, Jean Yarbrough’s fine study of Roosevelt’s political thought and career has remedied that.  Though by her own admission this is not an “intellectual biography,” she has nonetheless skillfully woven together biographical sketches from Roosevelt’s life that . . . suggest the extent to which he in fact strayed from their understanding of limited, republican government.  In the end, Yarbrough concludes, Roosevelt might lay claim to his spot on Mount Rushmore by virtue of his “fighting spirit and love of his country” . . . but not for his faithfulness to the principles of the founding

  • Anthony de Jasay at Econ Lib writes about a tri-angled Europe, muddling through, with no discernible purpose or unifying principle.  I’m sure it will work out brilliantly.
  • In “The Perils of Neutrality” Bruce Frohnen’s University Bookman essay considers the continued viability of the liberal project.
  • Turning 30 today, Ronald Reagan’s ‘Evil Empire‘ speech. Paul Kengor has a short essay at the American Spectator that remembers the speech well. So this has always been my favorite line:

[B]eware the temptation of pride — the temptation of blithely declaring yourselves above it all and label both sides equally at fault, to ignore the facts of history and the aggressive impulses of an evil empire, to simply call the arms race a giant misunderstanding and thereby remove yourself from the struggle between right and wrong and good and evil.

Natan Sharansky, then a prisoner in the Gulag, recalls that after learning about Reagan’s words he was ecstatic because “someone had finally spoken the truth” about the USSR. “Finally, the leader of the free world had spoken the truth — a truth that burned inside the heart of each and every one of us.”

  • Legal Theory Blog points us to Adam Winkler’s short essay on the constitutionality of the filibuster.
  • Creative Destruction: Speaking of which, Rand Paul breathes fire against a regnant bipartisan consensus. Apparently, he has also planted the seeds for a new one.

Federalism, Congressionalism, and an Appeal For a Renewed Constitutional Morality

Why are we still talking about federalism in 2012?  Wasn’t it mortally wounded with the passage of the 16th and the 17th Amendments?  At least, that is what I hear a lot of Conservatives moaning about.   Surprisingly, then, we are still talking about federalism.  And, I trust, doing something about it.  Here is a preliminary answer to the question about the fate of federalism: federalism is a conservative principle that over the last 100 years has restrained the development of the Administrative State. My mind wanders to the Progressives with their national prohibition of intoxicating liquors, FDR’s New Deal spiritual crusade against Mammon and “the money changers in the temple,” LBJ’s Great Society “war on poverty,” and our current national debate over individual health care coverage.  These various Prohibitionists are very spiritual and remind me of the spiritual Colonialists and their love of good government to make us good people.  Good government is also big government.

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