Paging Professor Epstein
I've seen videos of people who debate Professor Epstein. They do not end well for the person taking him on. He's as smart and quick as they come, which makes his recent post all the more disconcerting to me, so pardon me please whilst I step into the grinder.
Responding to Newt Gingrich's challenge [pdf file] to a judicial branch that is becoming more like a robed oligarchy and less like a coequal branch of government, Professor Epstein confessed that "It is hard to know where to begin…" So, a gentleman who usually discards hit and run polemics in favor of sinking his teeth into substantive argument began by mocking Gingrich's, "feeble academic credentials." This is the kind of maneuver that normally leaves us lesser, uncredentialed mortals shaking our heads and chuckling. Few things in government work provided me with more entertainment than watching academics show each other who had the biggest doctorate. But it seemed very uncharacteristic to me in this case, and a bit unnerving coming from someone I admire as much as Professor Epstein. So perhaps the Professor will take a moment to answer some questions from an admittedly uncredentialed, though profoundly curious, truck driver.
Professor, you write: "…the one great concern that the Framers had about the judiciary was the institutional arrangements that were needed to serve its independence. In staking out this ground, the Framers were not concerned with the institution of judicial review with respect to legislation." How does that square with Jefferson's quote that, "the germ of dissolution of our federal government is in the constitution of the federal judiciary, an irresponsible body...working like gravity by night and day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one."? Or for that matter, Jefferson's admonishment that, “You seem...to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”?
Because you see, sir, those were a couple of quotes gleaned from Gingrich's White Paper on the topic of Judicial Supremacy and his proposed methods of redress. While I have no doubt of the ease with which you will be able to dispatch the question I pose above, I would have preferred that you handled that, as well as the meat of the White Paper's corrective countermeasures, rather than dismiss them as a "Congressional inquisition of judges," before giving us a front row seat to the machinations of Unemployment Division v. Smith, labeling Newt Gingrich as a "hot head" and "malcontent," and pausing on your way out the door long enough to offer as your solution the writing of more, "briefs and articles."
More questions:
* Aside from electing the right President, the right senators, and hoping against all evidence for the day that the Senate properly carries out it's obligation to advise and consent regarding judicial nominations, do you see any constitutional check on judicial power other than the filing of briefs and writing of articles?
* What do you see as the proper reading of the final half of the following from of Article III, section 2, clause 2, which states that, “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make”?
* If Congress does not have the authority to rein in Judicial overreaching, do we not then have a tacit concession of the concept of judicial supremacy which then undermines the concept of coequal branches of government and elevates the Supreme Court to a standing Constitutional Convention whose rulings carry the weight of Constitutional Amendments? Is that the sort of power the Founders envisioned for the Court? What brief or article could you author that would convince the Court to divest itself of this power?
* Thinking that the judicial branch would be the weakest of the three, Alexander Hamilton explained in Federalist 81 that, "There can never be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations.” Do you think history has reaffirmed Hamilton's prediction? Does Congress really have the means Hamilton had in mind to preclude judicial encroachment, or was he being a hot head?
What I'm detecting here, perhaps erroneously, is a tendency of jurists to circle the wagons in response to any imposition on their perceived authority to proceed, without accountability, and do as they wish with the rest of us. Under this approach, any attempt to limit judicial mischief is viewed as an attempt to "blow up an institution." But in a time when property rights are under assault under the Kelo decision, when a sitting Justice goes on record saying, "U.S. jurists honor the Framers' intent 'to create a more perfect Union,' I believe, if they read the Constitution as belonging to a global [emphasis mine] 21st century, not as fixed forever by 18th-century understandings," and when the Supreme Court usurps the prerogatives of the Commander In Chief and the Congress with regard to wartime detention (prompting Justice Scalia to observe, "The game of bait-and- switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed."), we are entitled to observe that institutions are already being blown up by the judiciary, and ask what remedies are available to reverse these encroachments, expecting something more than a sardonic dismissal and counseled to leave it to the judiciary to fix itself. We are a free people, not laboratory mice kept for the amusement and experimentation of members of an unaccountable olympian council trying out their pet theories. To the extent that we intend to remain a free people, suggestions such as those proffered by Mr. Gingrich deserve more serious discussion than they received from Professor Epstein.
- Comment (26)
- · Quote
- · UnfollowFollow (3)
- Pages:
- 1
- 2
- Pages:
- 1
- 2
Comments :
Jul '11
Re: Paging Professor Epstein
I agree that somehow judicial activism needs checking Dave, how one does that without potentially disastrous unintended consequences is another item.
Re: Paging Professor Epstein
I agree with your agreement, DocJay, and share your concern. I'm curious as to what the consensus is regarding Constitutional remedies, and how the consequences of those remedies measure up against the consequences of unchecked judicial power we see unfolding around us.
Jul '11
Re: Paging Professor Epstein
I dread a 4-5 or 3-6 Supreme Court, especially when some of the liberals are completely unconcerned with the limitations of federal power the Constitution enumerates. Such a court could make me and millions of previously law abiding citizens enemies of state. So while Professor Epstein articulately argues one direction, my mind jumps to judicial tyranny and potential civil war. Of course I refuse to post this in his column due to abject fear of the dressing down I most certainly would suffer.
Edited on Jan 2 at 7:08pmRe: Paging Professor Epstein
A fear that, perhaps due to invincible ignorance, I don't share. Besides, I drive a larger vehicle.
Dec '11
Re: Paging Professor Epstein
Unfortunately, Article III, together with the Commerce clause, was one of the most poorly-drafted sections of the Constitution.
And even more unfortunately, Congress has ceded authority to the courts far beyond those envisioned by the founders, who specifically gave Congress the authority to limit the power of the courts:
" In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
It's human nature for men to arrogate power unto themselves. It's cowardice for Congress not to limit the courts, as the Constitution provided.
Re: Paging Professor Epstein
Nobody's Perfect: Unfortunately, Article III, together with the Commerce clause, was one of the most poorly-drafted sections of the Constitution.
And even more unfortunately, Congress has ceded authority to the courts far beyond those envisioned by the founders, who specifically gave Congress the authority to limit the power of the courts:
...· Jan 2 at 7:08pm
Having ceded that authority, is Congress now powerless to reclaim it?
Dec '10
Re: Paging Professor Epstein
Dave Carter
Nobody's Perfect: Unfortunately, Article III, together with the Commerce clause, was one of the most poorly-drafted sections of the Constitution.
And even more unfortunately, Congress has ceded authority to the courts far beyond those envisioned by the founders, who specifically gave Congress the authority to limit the power of the courts:
...· Jan 2 at 7:08pm
Having ceded that authority, is Congress now powerless to reclaim it? · Jan 2 at 7:13pm
According to Newt, no. According to the esteemed Professor Epstein, maybe not empowered to reclaim it, and hopefully wise enough not to try.
Dec '11
Re: Paging Professor Epstein
Having ceded that authority, is Congress now powerless to reclaim it?
That depends on who in Congress has the guts to stand up to the Supreme Court's arrogant power-grab under Marbury v. Madison.
Nov '11
Re: Paging Professor Epstein
The King Prawn
Dave Carter
Having ceded that authority, is Congress now powerless to reclaim it?
According to Newt, no. According to the esteemed Professor Epstein, maybe not empowered to reclaim it, and hopefully wise enough not to try.
Notwithstanding the hyperventilating about Newt wanting to "blow up" the Supreme Court, wrangles between the three branches at the intersections of their respective powers are not only to be expected, but are actually healthy--reminding each of the branches to act with circumspection and restraint, especially when operating at uncertain boundaries of its authority.
What's more, it's a healthy thing that precise boundaries between the three branches' powers remain undefined, vague, and overlapping, because each will be less likely to act oppressively where the extent, or even the existence, of its authority can be reasonably challenged.
Healthy also is a discussion of whether congress ought to consider excercising its power under Article III Sections 1 and 2 to restrain courts that won't restrain themselves.
Feb '11
Re: Paging Professor Epstein
I'll take a crack at some of the collateral questions that you pose:
"Aside from electing the right President, the right senators, and hoping against all evidence for the day that the Senate properly carries out it's obligation to advise and consent regarding judicial nominations, do you see any constitutional check on judicial power . . .?"
Power to what? Appoint officials, declare war, impose taxes, legislate laws? Absolutely. Neither of the other two branches would have to respect a usurpation of their delegated authority.
Power to interpret the application and meaning of laws to the case before them? No, I don't see any appropriate check on their authority, apart from the political process. This allows sustained public sentiment to eventually overturn bad precedents. It a terrible result for those who must comply with poor decisions, but increasing the politicization of constitutional interpretation would be worse.
Aside from electing the right officials, what hope have we of legislating just laws? A constitution can do only so much; the electorate has a responsibility as well.
Feb '11
Re: Paging Professor Epstein
"What do you see as the proper reading of the final half of the following from of Article III, section 2, clause 2 . . . ."
Congress can make exceptions to appellate jurisdiction, in which case there is no appeal from the decision made by a court with original jurisdiction. This hightens judicial power, so I presume you wouldn't advocate it. In any case, the right to create exceptions to appellate jurisdiction does not imply that Congress has the power to exercise jurisdiction itself.
The exericse of jurisdiction requires regulation (how, when and where appeals are taken, what must be filed, etc.) Congress must regulate the appellate process. But this doesn't mean that Congress has a say in the adjudication of an appeal. That jurisdiction is given to the Court.
Feb '11
Re: Paging Professor Epstein
"If Congress does not have the authority to rein in Judicial overreaching, do we not then have a tacit concession of the concept of judicial supremacy which then undermines the concept of coequal branches of government and elevates the Supreme Court to a standing Constitutional Convention whose rulings carry the weight of Constitutional Amendments?"
With respect to state laws, the concept is not tacit. The Supremacy Clause gives Federal laws (including the Constitution) precedence over conflicting state laws. By granting the Supreme Court appellate jurisdiction over state court decisions involving Federal questions, Congress has enacted a principle of judicial supremacy of the Supreme Court over state courts in these matters. Congress could limit this jurisdiction, but this would leave the interpretation of federalism to fifty state courts, which seems inconsistent with the concept of a Supremacy Clause.
A judicial nominee that viewed courts as "standing constitutional conventions" should not be confirmed. Even the most liberal judges make some pretext of "interpreting" provisions of the Constitution, not amending it. See my earlier comment on the political check on judicial lawmaking.
Dec '11
Re: Paging Professor Epstein
But this doesn't mean that Congress has a say in the adjudication of an appeal. That jurisdiction is given to the Court.
Under Article III, Congress has the power to remove any subject from jurisdiction of a court, simply by passing a law, subject to signing by the President.
Feb '11
Re: Paging Professor Epstein
Nobody's Perfect: But this doesn't mean that Congress has a say in the adjudication of an appeal. That jurisdiction is given to the Court.
Under Article III, Congress has the power to remove any subject from jurisdiction of a court, simply by passing a law, subject to signing by the President. · Jan 2 at 9:52pm
But Congress does not have the power to overturn the decision of the lower court that would have been appealed. All Congress can do is withhold appellate jurisdiction from the Supreme Court, in which case lower court rulings will go unreviewed. Under the Constitution, Congress cannot review cases itself, any more than the Supreme Court can pass laws.
Re: Paging Professor Epstein
ShellGamer
Nobody's Perfect: ...
Under Article III, Congress has the power to remove any subject from jurisdiction of a court, simply by passing a law, subject to signing by the President. · Jan 2 at 9:52pm
But Congress does not have the power to overturn the decision of the lower court that would have been appealed. All Congress can do is withhold appellate jurisdiction from the Supreme Court, in which case lower court rulings will go unreviewed. Under the Constitution, Congress cannot review cases itself, any more than the Supreme Court can pass laws. · Jan 3 at 7:05am
Except of course that the Supreme Court has legislated, unconstitutionally, finding rights in the Constitution that had never existed. The question I pose, which Gingrich addresses, is whether there are Constitutional remedies to either rein in or dismiss wayward courts and /or judges. Judging from their quotes above, both Hamilton and Jefferson seemed to think so. Otherwise, the Supreme Court becomes a standing Constitutional Convention, unelected and unaccountable, with no check on its whims. Is that what the Founders had in mind?
Edited on Jan 3 at 7:19amNov '11
Re: Paging Professor Epstein
Dave Carter
...What I'm detecting here, perhaps erroneously, is a tendency of jurists to circle the wagons in response to any imposition on their perceived authority to proceed, without accountability, and do as they wish with the rest of us....
I've also detected this tendency, among even supposedly libertarian jurists. (Orin Kerr comes to mind).
Mar '11
Re: Paging Professor Epstein
Regarding that Hamilton quote: yet another reason I refer to him as "the Worst Founder".
Mar '11
Re: Paging Professor Epstein
Terry Mott
Dave Carter
...What I'm detecting here, perhaps erroneously, is a tendency of jurists to circle the wagons in response to any imposition on their perceived authority to proceed, without accountability, and do as they wish with the rest of us....
I've also detected this tendency, among even supposedly libertarian jurists. (Orin Kerr comes to mind). · Jan 3 at 7:35am
Any government group... elected, appointed, whatever... is going to fight tooth and nail to protect their perks and power.
Feb '11
Re: Paging Professor Epstein
We agree on the first two remedies proposed by Gingrich (elect the right senators and appoint the right justices). But which of the other remedies would you want Obama/Reid/Pelossi to have exercised after the 2008 election? Wouldn't leaving interpretation of the Constitution to the political branches more likely lessen our individual liberties and any faint hope of limiting Federal government?
Would it have been a good thing for Congress to include in ObamaCare a clause denying the Supreme Court jurisdiction to hear any case contesting the law's constitutionality? Would Congress have been justified in placing the justices in the majority of Citizens United in stocks and having them pilloried? Would threatening justices with impeachment if they overturn a Federal law will strengthen the system of checks and balances?
Why should we suppose that a Senate that will not confirm a justice who openly advocates overturning Roe v. Wade will impeach a justice that fails to do so?
Playing by the rules when the other side doesn't is frustrating, but it is part of what makes us conservatives.
Dec '11
Re: Paging Professor Epstein
I have many thoughts on judicial supremacy. the entirity of our government shouldnt be about getting our team on the supreme court. the supreme court is now what the senate was supposed to be. We dont have a body of impartial angles. We have interested policy advocates, who only have the pretense of not being political beings. Nothing proves this more than Ginsberg's dissent in the heller decision. Its just outright terrible nonsense. Just outright nonsense.
Even thomas will turn himself inside out every now and again for a chosen policy.
I think Gingrich's biggest sin was stripping away the pretense and thinks we ought to stop trying to load luggage onto a ship that already sailed a century ago.