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Where’d We Go Wrong?
What policy mistake most contributed to our current situation in the United States? I think it’s fair to say we’ve diverged widely from what the Founders had in mind for us when they declared independence from King George III. To keep things reasonable, let’s limit this to changes since the Declaration of Independence. So you can point to the Constitution but not to Christianity, as Christianity predates the Declaration.
One might point to direct elections of senators, for instance, or Prohibition. (One could make an argument for both, but I won’t.) Perhaps our biggest mistake was abandoning the Articles of Confederation? Or not taking the Anti-Federalists’ arguments more seriously?
Ideally we’re talking about root causes, not symptoms. But I don’t think we should limit it to root causes that can be fixed, since that would preclude, for instance, an observation that basing a Constitution on a virtuous citizenry may have been unrealistic. If people aren’t fundamentally virtuous, I don’t think that can be fixed, but it still could have been a mistake.
What say you?
Published in Domestic Policy
The problem becomes that judicial supremacy is so closely linked with judicial review as to make them inseparable for all practical purposes. If all three branches have an equal say in determining what is and isn’t constitutional, there has to be some mechanism for determining who has final authority when they are in conflict. We have defaulted to the Court having that authority which is what Jefferson foresaw and what Lincoln decried after the Dred Scott ruling. If the Court can overturn actions of the other two branches through its power of judicial review without the other two having recourse to stop it, it can be argued judicial supremacy is inherent in judicial review. It has certainly been applied that way for the last 160 years.
Interestingly, Madison is cited as a proponent of judicial review at the time of ratification, but he later penned the Virginia Resolution advocating for the states to collectively have authority to rule federal actions unconstitutional. He appears to have realized that allowing judicial review set up an unresolvable conflict among the branches of government which was best remedied by returning the question to the people and the states.
I’ve been reading an article here that has a different take on your fourth point. It’s an old article from the Michigan Law Review where the author points out other cases that were direct parallels ruled on by the Marshall court after Marbury with opposite outcomes. Coupled with the fact that there wasn’t another federal law struck down for over 50 years following, he concludes:
In short, there was no valid occasion in Marbury v Madison for any inquiry by the court into its prerogative in relation to acts of Congress. Why then, it will be asked, did the court make such an inquiry? To speak quite frankly, this decision bears many of the earmarks of a deliberate partisan coup. The court was bent on reading the President a lecture on his legal and moral duty to recent Federalist appointees to judicial office, whose commissions the last Administration had not had time to deliver, but at the same time hesitated to invite a snub by actually asserting jurisdiction of the matter. It therefore took the engaging position of declining to exercise power which the Constitution withheld from it, by making the occasion an opportunity to assert a far more transcendent power.
(I should add the article is by a supporter of the court having judicial review as an implied power of the Constitution, but he believed the court based it on the wrong reasons in Marbury.)
Thanks for the tip. I might take a look at it. If Paulsen’s analysis of Marbury is in error, then my fourth point fails.
I initially flagged this while trying to click the Like button. (I canceled the flag.)
Yes–the Constitution itself. The people are the authority, the Constitution their mechanism. They can elect a Senate and President who will appoint the right judges, a Congress that will impeach, a President who will or will not enforce a SCOTUS ruling, a Congress that will or won’t legislate in response to it (like how we got RFRA), etc.
When, in the short term, a conflict remains, it’s like other conflicts when powers are divided: It does little harm, and the division of powers that allows it does a world of good. (Here I am, of course, speaking of a properly functioning Republic, such as we have not seen in many a decade.)
It has been so applied, but that argument can’t be made because there is recourse. We merely (sick society that we are, afflicted with the doctrine of judicial supremacy and many other maladies) don’t choose to use them.
Judges can only be appointed if there are vacancies so there is a limitation on the ability of the people to have immediate remedy through that channel. The longer a ruling is in effect because of that, the less likely it is to be overturned. That goes back to Tuck’s point about lifetime appointment and toothless threats of impeachment. While there are these mechanisms for redress, the truth is they aren’t used and historically haven’t been used which makes them a more theoretical than practical means of corrective action. The fact that we’re still discussing a 200 year old ruling that Jefferson and Hamilton couldn’t agree on and that Madison waffled back and forth on means we’ve never really solved the problem and have fallen back on judicial review being legitimate which led to judicial supremacy which led to the abuses of the court.
Judicial review was a newish concept at the time of ratification, and the English tradition recorded in Blackstone was that explaining the law was a prerogative of the Parliament not the judiciary. Perhaps the problems that have arisen from it are based on the fact that it was a departure from what had been accepted practice before so the consequences of embracing it weren’t completely understood until its potential (and actual in the case of Dred Scott) abuses became apparent.
That tends to be the reality on the ground. I’m talking about the Constitutional mechanisms themselves, our lack of will to use them notwithstanding.
For the record, I’m very happy to look into stronger or newer mechanisms. (Like Epstein’s term limits.)
I didn’t know that. That’s a wonderful fact!
A reasonable theory (though I’d add for clarification that I don’t blame the abuses of the doctrine on the doctrine itself).
Heaven knows I’m no legal scholar, but I wonder whether Blackstone’s assertion of parliamentary prerogative might have had an element of wishful thinking about it. Maybe parliament *should* have the ultimate say, but the common law — the legal manifestation of England’s unwritten Constitution — is judge-made law, or should I say judge-realized law. The way Ronald Coase described its evolution, the common law doesn’t sound half-bad, either — in fact, surprisingly good. Ideally, I think judicial review would allow our common- law heritage to be recognized at the federal level. But I’m not sure.
Maybe someone like James of England could elaborate?
The bit about Blackstone and the origins of legislative/judicial review are about halfway through that Michigan Law Review article I linked. I found it a very interesting read even though I disagreed with some of its conclusions.
Oh, good. I ended up downloading and emailing it to my Kindle account. So I may read it!
Good post. Agree 100%. But this is a failure of the other two branches. They cede supremacy to the Court.
They all take the same oath to uphold the Constitution, so they all have the same duty not to let the other branches run roughshod over it.
Now, however, there are three other branches. Can’t forget the Administrative State–it’s the ‘exception’ that’s gobbled the rules set up for the “real” three.
Yes. All three other branches have ceded their duty to a “branch” that was never supposed to exist with those powers in the first place.
Amen.