Supreme Court

Can't We Just Abolish the Supreme Court Before It Abolishes ObamaCare?


The American judiciary was designed to be an anti-democratic institution. James Madison called it "an impenetrable bulwark against every assumption of power in the legislative or executive." The idea is that the courts are uniquely situated to protect both individual liberties and unpopular minorities against the tyranny of the majority. Judges do this (if they do it) by striking down democratically-enacted laws.

Not everyone is so keen on the idea of an independent judiciary thwarting the will of the majority, of course. Supreme Court Justice Oliver Wendell Holmes Jr., for example, one of the first great champions of the doctrine of judicial restraint, believed the courts should stay almost entirely out of the legislature's way and let the majority rule. "If my fellow citizens want to go to Hell I will help them," Holmes wrote. "It's my job." To put that more diplomatically, if a citizen doesn't like a given piece of legislation, she should head to the ballot box, not to the courthouse.

As the various legal challenges to the Patient Protection and Affordable Care Act work their way towards the Supreme Court, a handful of modern liberals are paying new attention to Holmes' deferential approach and wondering if there isn't a way to keep ObamaCare out of the courthouse altogether. One of them is Slate legal writer Dahlia Lithwick, who argues in her latest column that "maybe it's time to stop offering the courts the last word on whether a law stands or falls."

Lithwick says she's been tempted to abandon judicial review by the arguments of New York University law professor Jeremy Waldron, who thinks "judges should not be allowed to have the authority to strike down legislation, period." Here's how she summarizes Waldron's siren song:

Allowing judges to have the last word on the constitutionality of gay marriage, abortion, or capital punishment, he wrote, is fundamentally undemocratic. In countries that do not permit judicial review, the citizens themselves are allowed to decide whether such laws are permissible. Judicial review, he wrote, undermines democratic values "by privileging majority voting among a small number of unelected and unaccountable judges."

Let's say that judicial review does "undermine democratic values." Are those the only values that matter? A majority of voters in the Jim Crow South would have supported racially segregated public schools in a 1954 referendum. Does that mean we should criticize the "unelected and unaccountable" justices who handed down Brown v. Board of Education in 1954? What about the unelected justices who overturned an anti-Catholic, Klan-supported Oregon law banning private schools in 1925's Pierce v. Society of Sisters? Both Brown and Pierce could be accurately described as "fundamentally undemocratic" since they violated the wishes of the voting majority. But so what? Democracy can be a wonderful thing, but it also has its limits.

NEXT: The Meaning of Socialism

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  1. The left is only against judicial review when it works against them. Just like they’re against the filibuster only when they are in power.

    They are nothing but hypocrites, much like their opponents on the right.

    1. Shorter Dahlia Lithwick: “The only thing that matters is the result we want.”

      1. Somehow, Lithwick the legal pundit always arrives at the position that most benefits the Democratic Party Platform. Can someone find an exception?

    2. They really should just have loose party affiliations called Offense for those in power and defense for those currently not in power. The rhetoric stays the same along these lines more so than the current party affiliations.

      1. That’s a good idea. I’d be on Defense most of the time. Probably all of the time.

        1. I’d be the emo kid who is anti-sports, but really loves his music and eye makeup. (Not really me).

          1. Can I be bully whose repressed homosexuality causes me to bully you when actually I just have a secret crush?

        2. That is a good idea. I think I’ll have a pint of stout right now. Although a porter tempts me too.

      2. Good fucking call. They’re no different; it just matters who has more power at a given time. Shit, I say we just call them the Snakes and the Spiders.

        1. Hey! Who are you to choose my party for me?

      3. The only problem with this is that it would feed into Obama’s long lived desire to be a QB. Although, admittedly, Jerry Nadler is probably big enough to play OLine.

        1. It would be awesome if Obama were to take his Fantasy Camp athletic skillz onto a tackle football field.

          Do you remember Office Linebacker Terry Tate?

      4. +8901

        (When combined with John’s comment, some otaku see what I did there.)

        1. Knowledge of a meme = otaku? I missed that memo.

          1. Well, that too. I was only thinking of the source.

    3. I’m starting to think they are not really hypocrites. because their “principles” have nothing to do with the words that come out of their mouths. They espouse whatever prinsiples seem useful at the moment. But their real principles are their agenda of social welfare. If it involved fucking over the rich and giving money to the poor, they are for it. That is their true principle, which they always remain faithful to.

      1. You mean fucking over anybody and everybody and giving the money to themselves, right? That’s how I read that.

      2. If it involved fucking over the rich and giving money to the poor, they are for it.

        Hence the bank bailouts and opposition to restrictions on eminent domain.

      3. Both TEAMs’ agendas are the institutionalized accumulation of power in the form of statism. That’s it.

        1. Dems want Big Government to keep Big Business in check, so they grow government. Repubs want Big Business to keep Big Government in check, so they grow government. Neither wastes time trying to shrink the unwanted stepchild because that is way too hard, and neither wants individuals to have any power, so they grow the only option left.

      4. I wish it was really that simple. But no.

        1. Don’t know….most days it seems that simple!

  2. James Madison called it “an impenetrable bulwark against every assumption of power in the legislative or executive”

    I guess he never foresaw the day the Court would give unchecked power to the police to enter your home based on nothing more than being in the area and hearing you moving around inside the house.

    1. Madison’s problem – as with all the Founding Fathers, apparently – is that he thought that words on a page meant what they say.

      If the Constitution says, “The right of the people to be secure in their …houses… against unreasonable searches and seizures, shall not be violated…” who can blame him for thinking the matter was actually settled?

      1. commerce clause is all one needs babiee!

        1. OO|5.17.11 @ 3:43PM|#
          commerce clause is all one needs babiee!

          Is OO really MNG?

          1. Yes! And if you rearrange the capital letters his true identity is revealed as…..MONGO!

            1. Mongo only pawn in game of life.

    2. When you think about it, Madison didn’t think it through.
      Since the justices’ salary would be set and paid by congress, how could he expect them to be the bulwark?

  3. Judicial Activism FTW.

    What kind of world is it when leftists are now talking like republicans from the 90s, critical of the courts role is determining these things? I wonder if they would change their tune if suddenly we passed laws against smarmy limo liberals.

    Seems to be the problem is the courts showing way too much deference to the gov’t. Presumed constitutionality and all that.

  4. I’m pretty sure Hit and Run’s high point was the thread where we misquoted Oliver Wendell Holmes repeatedly. “Texans are the price we pay for civilization.”

    1. God, I hate that smug mindless shitty quote. (the real one, I mean)

      1. “Three generators of syllables are enough.”

        1. I think it was “three generations of sycophants are enough.”

          Don’t forget, OWH also was the one who, when Learned Hand called after him “Do justice, sir, do justice!” as he was pulling away in his carriage, stopped his driver and answer back, “That is not my job. My job is to apply the law.”

          In that regard, I actually have to agree with him. But “applying the law” also means applying the Constitution and striking down laws that are not authorized by it.

    2. The thread in question.

      Reading through it, I realized I had forgotten it was during the 2nd Dan T. Eruption. He was such a doucheshitting cuntbooger.

      1. I forgot about his time as Scotch. Dan T, so bad at everything he attempts.

        1. Warty|4.14.10 @ 11:18AM|#
          “My right to swing my balls begins where the other man’s mouth ends.”

          reply to this

      2. What do you call Hobie Hanson? That’s an eruption of shit too. So pathetic.

        1. dont forget me morom

  5. I will go to my grave wondering how a feral imbecile like Lithwick is employable as a commentator on the American judiciary.

    1. In Lithwick’s defense: Slate is pretty half-baked all around.

      1. Jack Shafer is one of two reasons I ever go over there; other reason is trolling their arts section’s writers.

        So there is one good reason to go there.

        1. Can’t you just troll Kurt Loder here?

  6. Does that mean we should criticize the “unelected and unaccountable” justices who handed down Brown v. Board of Education in 1954?

    Some people think so…

    1. I support judicial review, but think the Brown decision had zero constitutional basis and set the precedent for legislating from the bench and outcome-based jurisprudence in general.

      1. Griswold v. Connecticut did that if Brown didn’t.

        1. “”Griswold v. Connecticut””

          Is that a National Lampoon movie?

          1. Sort of, only more entertaining.

      2. It had some basis, just not the bullshit basis they trotted out.

    2. A truly addle-headed link.

  7. At what point is there nothing left to do an end-run around?

    It amazes me how much the left now despises the Constitution and the concept of any limitations on government. What’s odd, is this really began during the Bush administration, at a time when the glaring fallacy of an all-powerful government in the hands of someone else was shining in their little shifty eyes.

    Not that the right is much better, but I’m definitely getting the feeling that there are a good number on the left that would like to do away with the Constitution altogether.

    1. If the point of the constitution was to provide for a limited government to take care of a few national issues (like common defense, free trade among the states, and patents and copyright) and was structured to make it difficult for the Federal Government to expand that role, why does it surprise you that modern liberals would like to be rid of the constitution.

      1. It doesn’t surprise me at all. What surprises me is that they think they can be so open about it. I think that’s a mistake on their part.

        1. i hear it’s really old and confusing.

          1. Like 100 years old!

            1. It’s practically in a foreign language.

              1. wll iz nt txt spek

      2. over-generalize mass fail. stick to the article & lithwick

        1. Ugh. Stop writing as if you’re sending your buddy a text while in the middle of a meeting. God, that crap is annoying.

          1. tOO smart, you know

          2. Ugh. Stop writing as if you’re sending your buddy BFF a text while in the middle of a meeting study hall. God, that crap is annoying.


            1. OMG. LOL.

      3. You do realize that it took only 10 years after the Constitution came into force for the federal govt to criminalize dissent? That was before judicial review of course, but the Constitution was very thin on specifying how it was to be enforced, and this vagueness was taken advantage of almost immediately.

        1. The Alien and Sedition Acts were plainly unconstitutional, as many contemporaries publicly argued at that time, including Vice Pres. Thos. Jefferson.

          The Acts were never challenged in the SCOTUS, so the Court never had an opportunity to rule on them. Just as well, because the Court was populated by strong Federalists at the time.

          T.J. took his duties to uphold and defend the Constitution seriously, so he saw to it that prosecutions under the Acts not continue once he became pres.

          Seems to me that ultimately, the Constitution worked – upon the transfer of power after an election, the new Executive minded his obligation to uphold and defend the Constitution, whereas the previous Executive, and Congress, evidently had forgotten theirs.

          1. The major reason he objected to it is because it outlawed speech against the president and congress, but specifically (and purposefully), not against the Veep.

            At the time he was the veep.

            I like TJ’s philosophy too, but when he became President, he contracted the “well now the Right People are in charge” syndrome and proceeded to be as statist as virtually every other president since.

            1. Whenever people start talking about how the slave-fucker was a great prez, I can’t help but feel sorry for poor Aaron Burr.

              1. From da wiki:

                Jefferson issued an order for Burr’s arrest, declaring him a traitor even before an indictment. Burr read this in a newspaper in the Territory of Orleans on January 10, 1807. Jefferson’s warrant put Federal agents on his trail. He turned himself in to the Federal authorities twice. Two judges found his actions legal and released him. Jefferson’s warrant, however, followed Burr, who then fled toward Spanish Florida; he was intercepted at Wakefield, in Mississippi Territory (now in the state of Alabama) on February 19, 1807, and confined to Fort Stoddert after being arrested on charges of treason.

                Burr’s secret correspondence with Anthony Merry and the Marquis of Casa Yrujo, the British and Spanish ministers at Washington, was eventually revealed. It had been to secure money and to conceal his real designs, which were to help Mexico to overthrow Spanish power in the Southwest, and to found a dynasty in what would have become former Mexican territory. This was a misdemeanor, based on the Neutrality Act of 1794 passed to block filibuster expeditions like those questionable enterprises of George Rogers Clark and William Blount. Jefferson, however, sought the highest charges against Burr.

                In 1807, on a charge of treason, Burr was brought to trial before the United States Circuit Court at Richmond, Virginia. His defense lawyers included Edmund Randolph, John Wickham and Luther Martin. Burr was arraigned four times for treason before a grand jury indicted him. This is surprising, because the only physical evidence presented to the Grand Jury was Wilkinson’s so-called letter from Burr, proposing stealing land in the Louisiana Purchase. During the Jury’s examination it was discovered that the letter was in Wilkinson’s own handwriting ? a “copy,” he said, because he had “lost” the original. The Grand Jury threw the letter out, and the news made a laughingstock of the General for the rest of the proceedings. The trial, presided over by Chief Justice of the United States John Marshall, began on August 3.

                Article 3, Section 3 of the United States Constitution requires that treason either be admitted in open court, or proved by an overt act witnessed by two people. Since no two witnesses came forward, Burr was acquitted on September 1, in spite of the full force of the Jefferson administration’s political influence thrown against him. Immediately afterward, he was tried on a more appropriate misdemeanor charge, but was again acquitted.

                The trial was a major test of the Constitution. It was a carefully watched drama (Henry Adams gives a full account in The History of the United States of America (1801-1817)) as Thomas Jefferson wanted a conviction. He challenged the authority of the Supreme Court and its Chief Justice John Marshall ? an Adams appointee who clashed with Jefferson over Adams’ last-minute judicial appointments. Thomas Jefferson believed that Aaron Burr’s treason was obvious, and warranted a conviction. The actual case hinged on whether Aaron Burr was present at certain events at certain times and in certain capacities. Thomas Jefferson used all of his influence to get Marshall to move to conviction, but Marshall was not swayed.

                Historians Andrew Burstein and Nancy Isenberg write that Burr “was not guilty of treason, nor was he ever convicted, because there was no evidence, not one credible piece of testimony, and the star witness for the prosecution had to admit that he had doctored a letter implicating Burr.”

    2. End around is an offensive play in many offensive playbooks (see above)

      1. Makes sense; Dems are on offense right now.

    3. Well it is pretty old.

    1. Whoa whoa whoa….that’ll be quite enough of that! Far more back and forth head motion than I’m comfortable with outside of an auto accident…..or a blowjob!

      1. Headbanging is inherently undemocratic.

        1. Yeah….? We’ll just see what the court has to say about that!

        2. Warty wins the thread. We can all go home now.

        3. And circle head banging just isn’t fair. I shave my head because I’ll look like Ronald McDonald long before I look like Dave Mustaine with long hair, and the circle headbang just isn’t cool with no hair, therefore it should be banned.

  8. It’s not like anything bad could come from such thinking…

    Once we are satisfied on a construction of the Act, that it gives to the Minister an unfettered discretion, it is no function of a court of law to curtail its scope in the lease degree, indeed it would be quite improper to do so. The above observation is, perhaps, so trite that it needs no statement, yet in cases before the courts when the exercise of a statutory discretion is challenged, arguments are sometimes advanced which do seem to me to ignore the plain principle that Parliament may make any encroachment it chooses upon the life, liberty or property of any individual subject to its sway, and it is the function of the court to enforce its will.

    Sachs v. Minister of Justice
    Appellate Division
    Court of South Africa

    1. Dude, you just Botha’d the thread.

  9. Anytime someone mentions Holmes to support an argument I like to bring up Buck v. Bell.

    1. Hey, see above – it was not his job to do justice; it was his job to apply the law.

  10. Apparently nobody has examined unrestrained democracy with the ancient Athenian mob. But that wasn’t ‘real’ democracy because only about 10% of the population could actually ‘vote.’ No women, slaves, metics, and the like.

    So, if everyone could attend, it totally wouldn’t be a mob anymore? For being so educated characters like Lithwick sure are stupid. The philosophy and legalizing of right and left boils down to ‘me want cookie’ and however you get in the jar is the philosophy of the day. Remember the likes of Jesse Helms and the whole ‘legislating from the bench’ right-winger crowd? Ha.

    Oh, BTW, threadjack here that’s worth a checkout:

    How long ’till these guys are closed down to save us from child-raping -narcoterrorist – illegal-immigrant hordes?

    1. Woah! Check out the big brain on TheZeithgeist! Thats right, the metics system.

    2. It all went downhill when they gave the plebs the vote.

    3. I thought it was that whole Peloponnesian War thingy that did Athenian Democracy in.

      1. Actually, I think there’s a good argument to be made that democratic excess had something to do with Athens fighting a war against Sparta in the first place.

  11. You know who else wanted to pass laws that couldn’t be struck down by judges?

    1. Any president since (and including) Jackson?

    2. Justin Bieber?

    3. Too many to count.

    4. Mohammed?

    5. Michael Bay?

    6. That Joo Shylock?

  12. “If my fellow citizens want to go to Hell I will help them,” Holmes wrote. “It’s my job.” To put that more diplomatically, if a citizen doesn’t like a given piece of legislation, she should head to the ballot box, not to the courthouse.

    Did he actually say that?

    I thought that to the modern progressive, who idolizes Holms, the only thing standing athwart the return of Jim Crow was an anti-democratic court system which overrides the vibrating desires of the people which would, if given pure democracy, return to Jim Crow tomorrow afternoon.

    Hm, well, a little google search says they used to love him, but now don’t. What a web we weave.

  13. In light of the Supreme Court’s recent decision on the Kentucky 4th Amendment case, I have a question for libertarians: Suppose if you can only pick 1 of the following choices:

    a) A Court that strikes down Obamacare and upholds every case to limit the 4th Amendment or
    b) A Court composed of at least 5 Ruth B. Ginsburgs who will broaden 4th Amendment protection at every turn while singing the praises of Obamacare.

    Which one will you choose?

    Go ahead. Pick your poison.

    1. Oh Lord you know these guys lie awake in sweaty fear and anger over fantasized Commerce Clause violations so the answers are going to be pretty lopsided.


      1. No. If you don’t play, then the other 2 teams definitely will and the winner will be chosen from them.

        1. On the other hand, if you play, the other 2 teams still will and the winner will be chosen from them. And you will have wasted time that could be better spent playing The Witcher 2.

      2. The Game, dammit!

        1. You just lost it, didn’t you?

    3. I have an idea. How about we respect the Constitution’s limits? Continuing to expand government power will not end well.

      1. Not according to Dahlia….at least until the next Oval Office occupant isn’t a Dem.

    4. Hmm, difficult. Picking one violation of the Constitution over another. Is there no third option?

      1. Embrace the Second Amendment.

    5. False choice. Ginsburg is OK with restrictions on political speech before an election, absolute bans on firearms, unrestricted eminent domain abuse, etc.

      The iffy stance on the 4th amendment is the price we pay for the conservative wing’s good views on other issues (not just Obamacare). And notice that the 3 other liberal justices voted against the 4th amendment in that case too.

      1. All true. I deliberately framed the choice that way because I wanted to find out which one libertarians prioritize over the other.

        1. I’m not a libertarian but I think justices that defend the rights of the accused are more critical. Nothing represents a more naked use of state power as the criminal justice wing of the state, at the least because it is the part that uses force to enforce all the other parts…

          1. For those who aren’t breaking the law, fourth amendment violations amount to at most harassment by police.

            For law-abiding citizens, it doesn’t even compare to the encroachments on the 1st, 2nd, and 5th amendment liberties that Ginsburg wholeheartedly supports.

            1. I think you are less likely to have your one thousand dollar contribution turned away or your property seized under eminent domain than you are to be pulled over or have it seized via asset forfeiture.

              And I won’t even bite on this ‘if you’re not breaking the law then no big whoop’ thing.

              1. I’m not saying that if you’re not braking the law you’ve nothing to fear; but when it comes to prioritizing, damn right I’m more worried about things that disproportionately affect good citizens as opposed to criminals. Reality is, most of the time, the “rights of the accused” are put in the service of people who are in fact guilty. The railroaded innocent is in the minority.

                And I’m pretty sure you’re wrong about the numbers anyway. Asset forfeiture is far too common but it’s much less so than eminent domain, and of course in the political speech case you don’t even try to do as you wish if you know it’s going to be ruled illegal.

    6. Does striking down Obamacare include, like, actually going back to what libertarians would consider an appropriate jurisprudence of the commerce clause? Because if so, then like…what, 90% of the federal government would disappear? That might be worth a lot of 4th Amendment bullshit. I mean, they can’t break down your door because they smell pot if pot isn’t illegal.

      1. Most of those people breaking down your door are state and local police dude.

        1. Getting federal money for their SWAT programs.

          Read more to find out how you can get your own SWAT team too!

    7. c) Another two Thomases and another pair of O’Connors!

    8. Do the five have to be Joos?

  14. The lionization of Holmes on the left is for 1. his judicial restraint in the face of Progressive economic legislation and 2. his First Amendment jurisprudence.

    The opposition to #1 was based on a mythical “right to contract” which has about the same firm foundation in the Constitution as the “right to privacy” so it’s hard to fault him on that. But where the Constitution was more explicit, like First Amendment cases, he stood up to legislative majorities. Of course he was enforcing Amendments that were passed with super-majorities over mere statutes so there’s that too.

    1. The Constitution itself talks about contracts. Pretty hard to call it mythical. It’s also insanely established in the common law, along with a number of things implied but not explicitly stated in the Constitution.

      For that matter, I’ve never bought that weird math or penumbras had to be investigated to find a right of privacy. The Bill of Rights was not and is not a comprehensive list of the rights we have.

      1. Hence the 10th

        1. and the 9th.

        2. Actually, that’s the 9th. The 10th concerns the enumerated powers of the federal government, though the enumerated powers doctrine works hand in hand with the preexisting rights doctrine of the 9th.

          9th = rights
          10th = powers

          1. My bad. I’m going to turn in my monocle for 9th/10th dyslexia.

            That’s inexcusable.

            1. Hold on to that monocle – possession is 9/10ths of the law!

      2. It prevents the states from “impairing the obligation of Contracts” and has a clause talking about federally contracted debt, but other than that is pretty silent. Pretty thin reed.

        The problem with these ‘unenumerated’ rights is, what are they? You say contracts, I say privacy and the guy down the road says to a segregated polity.

        1. It’s deeper than that. A right to real property, for instance, requires in our system of jurisprudence a written document governing the conveying of the property.

          It’s actually an interesting exercise, to read the Constitution and understand how much has to be brought in from outside the document from the common law and legal traditions of the time. Which is the only principled part of viewing the Constitution as somewhat malleable over time. Only somewhat, which is the problem your fellow travelers have in trying to gut the document like a fish.

        2. Generally speaking, the rights recognized in the common law. Sure, it’s ambiguous, but the larger point the founders were making in the 9th and 10th was that the “burden of proof” is on the federal government to justify an exercise of power, not on the citizen or state to demonstrate a preexisting right.

          Where things get more complex is the intersection between the original constitution and the limitations on states’ power in the 14th Amendment. The structural Constitution and the Bill of Rights, for example, say nothing about the concept of equal protection, though you could imply such a thing from several provisions.

        3. “It prevents the states from “impairing the obligation of Contracts””

          You mean like states impairing the contract I have with the Federal government that says I can keep and bear arms?

        4. It prevents the states from “impairing the obligation of Contracts” and has a clause talking about federally contracted debt, but other than that is pretty silent. Pretty thin reed.

          WHAT. THE. FUCK.


          The Constitution EXPLICITLY STATES that states may not pass laws impairing the obligations of contract. Do you have some trouble understanding what those words mean?

          First Amendment:

          “Congress shall make no law abridging the freedom of speech.”

          You don’t seem to think that’s a “thin reed.”

          Article 1, Section 10:

          “No state shall pass any law impairing the obligations of contracts.”

          How the fuck is that a “thin reed”? It explicitly forbids the states from interfering with legally binding contracts.

          What the hell else do you think that language means, if it doesn’t mean that states can’t pass laws that excuse people from otherwise legally binding contracts?

          1. “states can’t pass laws that excuse people from otherwise legally binding contracts”

            You do realize the answer is in your own post, right?

            Hint: who determines the criteria for otherwise legally binding contracts?

            1. So states can decide what makes a contract legally binding. Contracts for labor under a certain minimum wage, not binding. Contracts for prostitution, not binding. Etc.

              All you get from that clause at best is that you can’t retroactively negate contract obligations. And that doesn’t get you far because of this: consider something that used to be legal, like selling drugs or contracts that violate copyrights, once these are found illegal how could the state in enforcing these laws, not ‘impair’ any made-in-the-past but yet-to-be executed contracts?

              One of the things that makes a contract legally binding is that it not be a contract requiring a party to do anything illegal.

              1. Your argument renders the language meaningless and hollow and empowers the state to do exactly what the language plainly means to prevent.

                1. Your argument renders the language meaningless and hollow and empowers the state to do exactly what the language plainly means to prevent.

                  Dude, isn’t it obvious? In this clause, what the Founders really MEANT to write was: “states can make up their own definitions of legally binding contracts — as arbitrarily as they desire — and enforce/impair them according entirely to their own discretion.”

                  One wonders why they bothered to include the clause at all, those silly pranksters.

                  1. Interesting that even in your flailing stupidity you acknowledge the very distinction which destroys your pitiful husk of an argument: that setting up the criteria for what contracts will be recognized is something different than later impairing the obligations from such contracts.

                    The language of the clause, and the absurdity we are led to by alternate readings (contracts for kindapping and assasination can’t be ‘impaired’ via enforcement of relevant laws I guess), suggests it was simply aiming to prevent the latter (and even then it must have been in a pretty circumsribed way as I explain elsewhere on the thread).

                    1. “flailing stupidity”

                      A useful description of every single post you’ve ever made, MNG.

                2. Even the history at the time shows that what they were trying to do was prevent states from passing laws that screwed out of state creditors. It’s crazy to think they were barring the centuries old idea in the common law that the state could decide which contracts were legally binding and which were not. Consider, do you really want to argue that the clause was to bar states from, for example, prohibiting prostitution? Because under your reading that’s what it would do.

                3. Much like his reading of the commerce clause does at the federal level.

                4. Well he is a PhD in poly-sci isn’t he?

                  1. But he’s never been to a tractor pull, so what does he know.

                    1. you know who else drove a tractor?

    2. The opposition to #1 was based on a mythical “right to contract” which has about the same firm foundation in the Constitution as the “right to privacy” so it’s hard to fault him on that.

      So you now disagree with the SCOTUS decisions (Roe/Griswold/Lawrence/etc) that were based on the right to privacy?

      1. I like the results but have to admit there is little textual support for them.

        1. This is baffling. Why do so many people think the Constitution grants rights?

    3. a mythical “right to contract” which has about the same firm foundation in the Constitution as the “right to privacy”

      Uh, Minge? Have you ever actually read the document?

      Article I, Section 10:

      No state shall … pass any … law impairing the obligations of contracts … .”

      Pretty fucking express statement that you and I have a right to engage in a contract and the state cannot pass a law excusing you or me from the obligations we have contractually agreed to.

      1. Er, it says it cannot impair the obligations of contracts.

        It seems more reasonable* to read this to mean cannot impair obligations of contracts already entered into, not some free ranging right to enter into any contract under any terms you want.

        *given the common law at the time had long recognized the state sets up what is and isn’t a valid contract and the term ‘obligations’

        1. Heck, even the contract happy SCOTUS justices didn’t have the gumption to try to use that clause to justify their activism, they at least had the sense that somewhere in the depths of the word liberty in the due process clause of the 14th one could find a “liberty to contract” mulling about.

        2. It seems more reasonable* to read this to mean cannot impair obligations of contracts already entered into,

          Oh, so it only applied to contracts in effect when the Constitution was ratified. You’re right. That’s the only reasonable way to read it.

          1. No, contracts in which the obligations entered into were all legal at the time of the making of the contract. Those obligations are off the table, at best (but see above)

        3. Sort of like the Constitution never says that anyone has the right of habeas corpus, it just says you can’t suspend it in peacetime.

          1. It says “”The privilege of the writ of habeas corpus shall not be suspended, unless” which certainly means that the privilige normally is in effect.

            You don’t have that with the contracts clause, at best it just says that states can’t impair the “obligations” of contracts. The idea that it created some libertarian idea of protecting any contracting for anything between consenting adults is laughable, and you know that. Was this clause meant to bar state prohibition of contracts for prostitution or other things illegal? Was it meant to prohibit things like the ‘statute of frauds’?

            Like I said, even the SCOTUS defenders of liberty to contract did not attempt to locate it in this clause but in the 14th due process or priviliges and immunities. They knew it would be laughable.

    4. “The lionization of Holmes on the left is for 1. his judicial restraint in the face of Progressive economic legislation…”

      Gee, the left loves Holmes because he let them get away with their usurpations of power. What a surprise.

  15. And of course a vast majority of the country would have prevented the court from having jurisdiction to review GUITMO cases if they could have. I am sure Lithwick would have thought that was great. It amazes me what a mendacious bitch she is. She loves Democracy just as long as it is a tool for her to get exactly what she wants. God I hate that woman.

    1. Lithiwick is one of the duller, silly nationally recognized jurisprudence writers out there.

      1. I can’t figure out how she ever got her job. There are any number of real constitutional lawyers who have practiced before the Court who I have no doubt would love to retire into her gig and could actually bring something to the conversation. Instead we get Lithwick who is neither a scholar and has never been even a middling laywer. Hell my legal career is more impressive than hers. I managed to get hired by someone besides Daddy.

  16. “”the citizens themselves are allowed to decide whether such laws are permissible””

    The citizens can’t do anything about an unlawful police entry. So if citizens decides something is not permissible government tells them to fuck off.

    Citizens attempt to get their elected officials to pass laws in their behalf, but it’s hard to beat a lobby with lots of cash.

    As Zappa said, government only looks-out for number one, an you ain’t even number two.

  17. What they are saying is, let’s do away with judicial review NOW. You know, now that things are perfect.

  18. Yeah. A lot of people on the left have been arguing that striking down the law would be pure partisanship on the part of the justices.

    But they are the ones who are more than willing to twist and bend their own values, and support a grotesque legal precedent, all for the sake of acheiving their goal of universal healthcare.

    So what, now we get a situation where congress can force people to buy things under the commerce clause, and the Supreme Court is chastized for interfering with democratic perogatives, rather that allow someone who already has cancer to go without health insurance.

    1. Hazel

      They don’t see it as a grotesque legal precedent. I don’t either, though it is a pretty terrible political one.

      1. “”They don’t see it as a grotesque legal precedent. “”

        Of course not, it doesn’t fit their ends.

    2. “”So what, now we get a situation where congress can force people to buy things under the commerce clause,””

      Technically, that not true. The mandate is under the Necessary and Proper clause. The claim is that it is necessary to make the health law work. The health law it’s self is being justified under the Commerce Clause.

      If we argue against it under the wrong clause, we will not win. If we have a shot of winning at all.

      1. It’s not necessary, and it sure as fuck isn’t proper.

        I rest my case.

        1. It might be necessary to make their law work, but yeah, it sure the hell isn’t proper. I say you need both to be justified under the Necessary AND Proper clause.

      2. The N&P Clause has no power or substance on its own. It functions only in conjunction with the enumerated powers. It does not function as a general authorization for Congress to enact whatever legislation it deems necessary and proper. It allows Congress to enact such legislation as may be necessary and proper for acting under one of its enumerated powers. So it can enact legislation as is necessary and proper to regulate commerce among the states. If it’s trying to regulate something that is not commerce among the states, that ain’t proper, as it’s beyond the power given in the commerce clause.

        The N&P clause was discussed back in the day by the Framers – I don’t have it at my fingertips right now or at the forefront of my brain, but I do know that – maybe Madison, can’t recall – expressed his understanding that it was not a general grant of power; otherwise, why have the enumeration of limited powers?

        1. “”It allows Congress to enact such legislation as may be necessary and proper for acting under one of its enumerated powers.””

          The arguement is that the mandate is necessary and proper to make the health care/insurance law work. Health care and insurance regulation is allowed under the Commerse Clause.

          That’s the way some lawyers I know are explaining it. My guess is that arguement will win at SCOTUS. As much as I hate to say it.

          When it comes to clauses, case law will probably be more relevant to SCOTUS than the framers. I hate to say that too.

          I’m not defending the health care law. My belief is that even if you are for universal health care (I’m not), it’s still a really bad law.

          1. Health care and insurance regulation is allowed under the Commerse Clause.

            Especially since health insurance is purely intrastate.

            My guess is that arguement will win at SCOTUS. As much as I hate to say it.

            Pretty much whatever increases federal power wins at SCOTUS. Shocking, that.

  19. Both Brown and Pierce could be accurately described as “fundamentally undemocratic” since they violated the wishes of the voting majority

    I’m not so sure about Pierce, but the majority of the country did not like segregation. The majority of the country had integrated schools. The problem was that certain geographical minorities (who had the majority of votes in those districts) were strongly in favor of segregation, while the national majority was lukewarmly against it.

    1. States Rights!

    2. Brown vs Board didn’t involve a southern state if that’s what you’re getting at.

      1. Meh, we’ll give you Kansas dude.

      2. Kansas had both a Confederate and a Union government during the civil war. I guess that makes them a border state like Kentucky. I suppose it’s really a Midwestern state, though.

      3. Brown vs Board didn’t involve a southern state

        Virginia isn’t a southern state?

        The original Brown v. Board of Ed. was Kansas, yes, but by the time it got to the SCOTUS, it was a combination of five cases, including Davis v. County School Board of Prince Edward County – Virginia.

  20. Fuck this right-wing horseshit about the sanctity of the goddamn Constitution. What about the sanctity of life you turds used to appreciate?

    1. Why so virulent out of the chute Tony?

    2. Go live your life, honeychile. Ain’t nobody here stopping you.

      1. What is that? Are you mocking the dialect of the people you social Darwinians oppressed in the name of profit?

        1. Before you go around calling people “social darwinians” perhaps you should learn something about the origin of the term and its actual meaning.

          1. Relax, I’m sure the negroes are satisfied with their waddamelon (drugs and gun-crimes) and won’t be taking over the masser’s house (government and means of production) any time soon. Yessir!

            1. Notice that it is you, and not us, who is bringing up racial stereotypes. Hmmm, one might think that it is YOU who have a lower opinion of certain racial groups.

              1. one might think that it is YOU who have a lower opinion of certain racial groups.

                All white progressives do. For without the kind, guiding hand of the educated white man, without the cultivation of an enlightened political movement– like the wild orchid– the black man will wither and die.

                1. “For without the kind, guiding hand of the educated white man, without the cultivation of an enlightened political movement– like the wild orchid– the black man will wither and die”

                  Yeah, it’s social darwinists who show how non-racist they are by standing by and letting them die!

                  1. “Yeah, it’s social darwinists who show how non-racist they are by standing by and letting them die!”

                    Come on, this can’t be the real MNG. The real MNG is smarter than this.

                    But just in case. Tell me, why do you think that they would die without help from the government?

                    1. “Come on, this can’t be the real MNG. The real MNG is smarter than this.”

                      Two years ago, maybe. I think MNG broke his brain doing the logical contortions necessary to rationalize the insurance mandate and Obama’s Libyan adventure.

                  2. Yeah, it’s social darwinists who show how non-racist they are by standing by and letting them die!

                    For no man of color shall survive without enlightened white guidance.

                    Can the black man survive on his own? Nay, I say unto thee. For the black man will find no succor without enlightened white intervention.

                    We bring them culture and civilization, and what thanks do we get?

                    1. EL : Spare a talent for an old ex-leper, sir.

                      B : Did you say — ex-leper?

                      EL : That’s right, sir. (he salutes) … sixteen years behind the bell, and proud of it, thank you sir.

                      B : What happened?

                      EL : I was cured, sir.

                      B : Cured?

                      EL : Yes sir, a bloody miracle, sir. Bless you.

                      B : Who cured you?

                      EL : Jesus did. I was hopping along, when suddenly he comes and cures me. One minute I’m a leper with a trade, next moment me livelihood’s gone. Not so much as a by your leave. Look. I’m not saying that being a leper was a bowl of cherries. But it was a living. I mean, you try waving muscular suntanned limbs in people’s faces demanding compassion. It’s a bloody disaster.

                      M : You could go and get yourself a decent job, couldn’t you?

                      EL : Look, sir, my family has been in begging six generations. I’m not about to become a goat-herd, just because some long-haired conjuror starts mucking about.

                  3. Yeah, it’s social darwinists who show how non-racist they are by standing by and letting them die!

                    Because otherwise, they’d live forever. Just like white people.

                2. Paul, if they do NOT believe this they should explain why the policies they promote resemble those that someone would expect from people who do.

            2. “All opposition to Jesus Obama is RAAAAAAAAAAAAACIST!”

            3. Ugh. So bad, Tony.

            4. I like these little outbursts, Tony. They demonstrate your complete insanity.

        2. Okay…you gotta be off your meds today! What happened to my buddy…the cool policy wonk…the reasoned thinker on matters political?

        3. I propose that any comment associating libertarianism with slavery deserves a…


    3. Are you refering to abortion or war?

      1. Or the death penalty?

    4. What about the sanctity of life you turds used to appreciate?

      I thought that like Progressives, libertarians generally supported abortion.

    5. I can’t wait until Ron Paul gets the Rethuglican nomination and the truth about the racists newsletters is known.

      1. You mean the ones that he did not right and that were published when he was not running the company? Are those the ones you mean?

        1. write – long day it is

          1. You were right the first time — he did not right the newsletters once he found out the racist stuff being written in his name.

      2. Is Max spoofing Tony now?

      3. Max, is that you? So we have a troll sockpuppeting a sockpuppet. Or is someone sockpuppeting Max too? Layers of a dogshit onion, it is.

        1. You may have been getting at it, but if you peel away all those layers of an onion, you’re left with…nothing. How appropriate an analogy, then.

      4. I can’t wait until Ron Paul gets the Rethuglican nomination and the truth about the racists newsletters is known.

        Except he won’t get near the nomination. It’ll be Mitt “The Midwife of Obamacare” Romney, and then it’s healthcare fail all the way down.

        1. Right, no one had ever thought of an individual mandate for health care before that creative dynamo Mitt Romney came along. It’s like his own personal Stay Puft Marshmallow Man.

  21. Is it really that hard to understand that democracy is the means, not the end? If you take a look at the Constitution, you’ll discover that democracy is employed to protect the rights of citizens, and accordingly democratic rule is often curbed where it might run afoul of the rights of individuals. A simple majority can’t decide to take away my rights; how fucking hard is that to understand?

    1. it’s not hard, which is why we contort ourselves into various exceptions to the rules. sure, you have a right to be secure in you house, papers, and effects, except for exceedingly rare, yet everyday occurrences

  22. ‘Can’t We Just Abolish the Supreme Court Before It Abolishes ObamaCare?’

    I read it as: Can’t We Just Abolish the Supreme Court Before It Abolishes Us.


    1. thank you, I was wondering how many posts it would take folks to realize that this was settled OVER 200 YEARS AGO!

  24. It’s obvious she doesn’t even understand why the Court strikes things down or what the rationale behind it is. She cites other nations whose courts cannot strike down legislation. She doesn’t explain why that is, so let me explain: the Westminster system is a Parliamentary Superiority system. That is, the Parliament is the fountain of laws.

    The US doesn’t work that way. The federal government has three separate but equal branches of government. None is superior to the other. The US is a Constitutional Superiority system. The Constitution is the fountain of laws, not the legislature. American courts can strike down legislation not because they’re superior to the legislature, but because the courts are bound to the Constitution and are not allowed to enforce a law contrary to it.

    That Dipwick doesn’t understand American Political Science 101 despite being a legal writer for a major opinion site is:

    a. frightening
    b. funny
    c. not at all surprising
    d. (Jersey Patriot is a racist.)
    e. externalities

    1. That separate but equal branches thing is so icky and, well, American. And states having fewer restrictions than the federal government? ohmygodthatsjustcrazy!

    2. Thank you. I thought for a second I might be the only one with a personal dislike of her.

  25. Funny, I didnt hear progressives decrying the use of courts to dispute the Wisconsin legislature re: collective bargaining rights privileges or California’s prop 8.

    1. I thought I told you to shut up about those!

    2. The judge in Wisconsin wasn’t striking down a law, she was enforcing the open meetings law. Which is a meta-law so it takes precedence.

      1. And the reason it was an issue was because the Democrats fleebagged to Illinois and refused to recognize the election results. Shut the fuck up Hobie.

  26. Ha. Thanks to rational basis review, the Supreme Court isn’t a bulwark against anything. The only way yo get them to think about overturning ObamaCare is to somehow convince them that it discriminates against race. Otherwise this pickle is fried.

  27. The controversy over judicial review is as old as the republic and will never be entirely settled. The proponents of overturned legislation will always suddenly morph into ardent “small D” democrats.

    To me, it’s a remarkable innovation that has stood the test of time and served as a practical check and balance on government power. The founders did a poor job of drafting Article III, which is not surprising since they didn’t have much of a model to draw from. They were probably naive in assuming that the executive and legislature would sufficiently check and balance each other without a third intervening force.

  28. So “open meeting” laws are enforceable by the courts, but not Constitutional laws. Gotcha.

    1. D’oh! Fucking threaded comments. How do they work?

      1. Not well, my friend. Not well.

    2. Unlike regular laws, the constitution was never passed by Congress. So it really is undemocratic when you think of it.

      1. Congress…? Before ratification?

      2. Are you attempting to channel Lysander Spooner? Cuz it’s not working.

  29. Judicial review is not undemocratic. The supreme court determines constitutionality. The constitution can be amended through democratic means. Therefore if a law is struck down as unconstitutional, the majority has recourse to change the constitution and pass the law again.

    1. Well, isn’t that just a nice clear statement of something our fellow citizens were supposed to have learned in 7th grad civics class!

      Thank you!

  30. Warrants Let Agents Enter Homes Without Owner Knowing

    Read more:…..z1MfMeZ319

  31. This issue is silly. When a law is “struck down” that just means a previously-enacted law that was given a higher priority, and whose priority was known at the time it was enacted, takes precedence over another law that contradicts it. It’s just a matter of interpreting the rules, and somebody’s got to do that. And there are provisions for modifying any of the rules. What’s the use of a constitution otherwise?

  32. Tyranny of the majority is apparently just fine as long as you are in the majority. But when you aren’t, it isn’t.

    And that’s when judges should act!

  33. Since we have the two party system all judges should have to be libertarians which would definitely make them independent of the two party system.

  34. What you forget about Brown v. Board of Education is Brown overturned Plessy v. Ferguson, 163 U.S. 537 (1896). Plessey overturned the POST CIVIL war popularly enacted ANTI-Segregationist Civil Rights Act (1876). The SUPREME COURT has no authority to overturn legislation that is not in direct conflict with an enumerated right. It has no authority to interpret the law. Interpreting the law is the JURY’s responsibly in our system of government.

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