Judiciary

What Progressives Get Wrong About Judicial Review

Without judicial review, liberals confronting a Republican-controlled legislature will have no opportunity to seek constitutional redress in federal court.

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In February 1958, a distinguished liberal jurist named Learned Hand told a distinguished liberal audience something that it did not want to hear. The U.S. Supreme Court's celebrated power of judicial review, Hand declared in a lecture at Harvard Law School, was fundamentally illegitimate.

Hand was talking specifically about Brown v. Board of Education (1954), the now-landmark case declaring Kansas' "separate but equal" public education system to be unconstitutional. Hand did not personally support the state's racist school system. Rather, his argument was that the Supreme Court had no business passing judgment on it in the first place. Nine unelected judges, Hand said, should not be allowed to substitute their constitutional values for those of the democratically accountable officials that had created the policy.

The problem with the Brown Court, Hand told his increasingly unsettled audience, was the same as the problem with the Lochner Court, which had once struck down Progressive-era economic regulations in the name of its constitutional vision. Both then and now, Hand said, the Supreme Court's use of judicial review was a "patent usurpation" by which the judiciary overruled the wishes of popular majorities and transformed itself into "a third legislative chamber."

Hand spoke at Harvard that day adorned with many impressive liberal credentials. In 1912 he had been a key adviser to Theodore Roosevelt's Progressive Party campaign for the presidency. In 1914 Hand had joined Herbert Croly in founding The New Republic, which quickly became America's most influential liberal magazine. In 1924 he would join the U.S. Court of Appeals for the 2nd Circuit, where his judicial career would stretch across three decades, making him one of America's most celebrated liberal judges. When he died in 1961, a New York Times obituary called him "the greatest jurist of his time."

Yet Hand's liberal audience in 1958 wanted nothing to do with his attack on judicial review. Liberals at the time not only cheered the Supreme Court's actions in Brown but cheered again a few years later when the Court struck down democratically enacted bans on birth control and abortion. In the years ahead, legal liberalism would become practically synonymous with the vigorous use of judicial review by the federal courts.

Those liberals were right not to buy what Hand was selling. Unfortunately, that was then. A growing number of lefty activists today seem ready and willing to join Hand's camp. "It's perfectly reasonable to ask if we should abolish the Supreme Court, or at the very least strip the Court of its ability to overturn laws that it rules unconstitutional," asserted Vox writer Sean Illing in 2018. "Disempowering the federal courts is the most democratic type of reform," declared Harvard law professor Nikolas Bowie in 2021. "No reform short of ending the power of judicial review," argued New York Times columnist Jamelle Bouie in 2019, will be sufficient to stop "judges nominated by Trump."

Six decades after Hand discomfited the crowd at Harvard, the case for ending judicial review is finding fans on the legal left. But abolishing judicial review is a misguided idea at odds with the Constitution, and one that will do lasting damage to liberalism itself.

'The Judicial Power'

Today's liberal critics of judicial review make two principal claims, both of which Learned Hand made too. First, they say that judicial review is repugnant to democracy. To allow unelected judges to void the actions of democratically elected legislators, presidents, or governors, the argument goes, is to allow the judiciary to subvert the will of the majority. Second, these critics say, judicial review "wasn't enumerated in the Constitution and isn't inherent in the court as an institution," as Bouie put it. Thus, the act of abolishing judicial review does not raise any constitutional concerns.

These liberal critics are right on the first count and wrong on the second. The judiciary is undoubtedly the least democratic branch of government. But that is by design. The role of the federal courts, as James Madison once put it, is to stand as "an impenetrable bulwark against every assumption of power in the legislative or executive." Lawmakers and presidents sometimes assume powers that they should not, and popular majorities sometimes support those power grabs. The judiciary is meant to stand in the way even if judicial review thwarts the will of such majorities. Indeed, the judiciary is meant to act as a check against the tyranny of such majorities.

What is more, contra Bouie, this authority is firmly located in the Constitution and fully inherent in the judicial branch. According to Article III, Section 1, "the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The Framers and ratifiers of the Constitution understood the phrase "the judicial power" to include the power of federal judges to nullify legislative and executive acts that violate the Constitution, which is the power that we call judicial review.

'A Negative on the Laws'

An examination of American legal history reveals the solid constitutional foundations of judicial review. Take the 1787 Constitutional Convention in Philadelphia, where the document was drafted. Speaking on July 21, Luther Martin gave voice to the consensus view. "As to the constitutionality of laws," Martin observed to his fellow delegates, "that point will come before the judges in their proper official character. In this character they will have a negative on the laws." George Mason made the same point on the same day. Under the Constitution, he said, judges "could declare an unconstitutional law void." Nobody at the convention disagreed with any of that.

This same understanding of "the judicial power" is also evident in the Framers' debates about a proposal that did not make it into the final document. James Madison was foremost among those at the convention who thought that Congress should have the constitutional power to veto state laws. Madison had watched as various states, under the Articles of Confederation, erected tariffs and other costly impediments to interstate commerce (among other barriers to the economic and political harmony of the new nation). Madison wanted to see a congressional check put in place against such state actions.

The states "can pass laws which will accomplish their injurious objects before they can be…set aside by the national tribunals," Madison told the convention on July 17. In other words, Madison worried that judicial review by the federal courts might take too long in such cases and therefore wanted Congress to be able to move even more quickly against especially dangerous state laws.

Gouverneur Morris spoke for the opposition to that proposal. "A law that ought to be negatived," Morris replied, "will be set aside in the judiciary department." Morris did not favor a congressional veto over state legislation because he thought the veto power of the federal courts—judicial review—would do the trick.

Morris beat Madison in that particular debate. The Constitution would not contain a congressional "negative" over state laws. But both sides in the debate did think—indeed, both sides simply took it for granted—that the federal courts would have the constitutional power to "set aside" unconstitutional laws. They all agreed that the federal courts would have the power of judicial review.

'A Constitutional Check'

That same understanding of "the judicial power" is evident when you examine the records of the state ratifying conventions. For example, after helping to draft the document in Philadelphia, James Wilson led the Federalists in pushing for ratification at the Pennsylvania convention. In a widely reprinted speech delivered on December 4, 1788, he explained the role of the federal courts under the new Constitution. "If a law should be made inconsistent with those powers vested by this instrument in Congress," Wilson said, "the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates." That is judicial review in a nutshell.

Oliver Ellsworth made the same point with particular clarity at the Connecticut Ratification Convention on January 7, 1788. An unjustly forgotten Founding Father, Ellsworth was both a member of the Continental Congress and a delegate to the Philadelphia Constitutional Convention. While serving in the U.S. Senate, he was the principal author of the Judiciary Act of 1789, which is still on the books. And from 1796 to 1800, he sat on the Supreme Court as chief justice of the United States. Ellsworth did as much as any Founder to give shape to the new federal judiciary.

"This Constitution defines the extent of the powers of the general government," Ellsworth told the Connecticut Ratification Convention. "If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void." And, Ellsworth added, "if the states go beyond their limits, if they make a law which is a usurpation upon the general government, the law is void; and upright, independent judges will declare it to be so."

Even the Anti-Federalist opponents of the new Constitution understood that "the judicial power" included the power of judicial review by the federal courts. Speaking at the Virginia Ratification Convention on June 12, 1788, for example, Patrick Henry praised the local judges of his state for having the "fortitude to declare that they were the judiciary, and would oppose unconstitutional acts." He then questioned whether the proposed federal judges could be counted upon to do the same. "Are you sure that your federal judiciary will act thus?" Henry demanded. In other words, he asked whether the federal courts would be up to the challenge of exercising the authority of judicial review that the Constitution granted to them.

And then there's Alexander Hamilton, who played a leading role at the Philadelphia convention and then wrote the bulk of the Federalist Papers, a series of influential essays that both explained the document's meaning and successfully urged its ratification. The "duty" of the judicial branch, Hamilton explained in Federalist 78, "must be to declare all acts contrary to the manifest tenor of the constitution void."

The writings of St. George Tucker provide yet another important piece of contemporaneous evidence about what the founding generation thought about the meaning of "the judicial power." Tucker was a veteran of the Revolutionary War, a colleague of James Madison, and a professor of law at the College of William and Mary. He watched in real time as the ratification debates unfolded and then, in 1803, published the first extended analysis and commentary about that founding document. In the years ahead, Tucker's View of the Constitution of the United States would serve as a sort of go-to constitutional law textbook for students, lawyers, and judges.

The judicial branch is "a necessary check upon the encroachments, or usurpations of power, by either of the other," Tucker explained. "Thus, if the legislature should pass a law dangerous to the liberties of the people, the judiciary are bound to pronounce, not only whether the party accused hath been guilty of any violation of it, but whether such a law be permitted by the constitution." In that sense, he wrote, the judiciary "is that department of the government to whom the protection of the rights of the individual is by the constitution especially confided, interposing its shield between him and the sword of usurped authority, the darts of oppression, and the shafts of faction and violence." It is sometimes the job of the courts, Tucker made clear, to thwart the will of overreaching majorities.

In sum, the evidence from the Philadelphia convention, the several state ratifying conventions, the Federalist Papers, and the first published constitutional treatise all point in the same direction: The Constitution places the power of judicial review in the hands of the federal courts.

'It Would Be Most Irksome'

The legal case against judicial review is a constitutional loser. As we have seen, the authority of the courts to "void" unconstitutional laws was originally understood to be part of "the judicial power" set forth in Article III.

What about the political case against judicial review? When he spoke at Harvard in 1958, Hand said he opposed judicial review because he thought it was bad for democracy. "For myself," he said, "it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs."

Those sentiments are probably attractive to many liberals today, who fear the actions of a Supreme Court with six Republican appointees on it. Is there really a downside, these liberals might think, to stripping the "Trump Court" of its judicial power?

Hand understood the downside perfectly well and said that he was prepared to live with it. No judicial review means no Brown v. Board of Education, as Hand frankly acknowledged. No judicial review means no Griswold v. Connecticut (1965), which struck down a ban on birth control; it means no Roe v. Wade (1973), which struck down a ban on abortion; it means no Lawrence v. Texas (2003), which struck down a ban on "homosexual conduct"; it means no Obergefell v. Hodges (2015), which struck down a ban on gay marriage.

No judicial review means that these resounding liberal victories never would have happened in the first place. And it means no future Supreme Court decisions that strike down other laws on constitutional grounds. Simply put, without judicial review, liberals confronting a Republican-controlled legislature will have no opportunity to seek constitutional redress in federal court.

Is that really the legal landscape that liberals want to see?

NEXT: Her Husband Died After Police Hogtied Him for 90 Minutes. Could She Ever Hold Them Accountable?

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  1. As they say, democracy is a streetcar where, once you reach your stop, you get off. The Left has reached their stop. Doing away with the filibuster so that they can pass their unconstitutional federalization of fraudulent elections doesn't do them any good if the Supreme Court can just strike the power grab down.

    1. But will the Supreme Court?

      I wouldn't trust Roberts farther than I could throw him, and Kavanagh has battered wife syndrome. The Democrats raise their fist and he cowers.

      And even if the court doesn't capitulate, the junta will just stack it.

      1. the Man of the Year award? If he
        hadn't been called on his lie so many times, he would still be lying about this fictious award.
        ANY post by you that mentions "MAN" is a lie by you or Trump. You mentioned "MAN" five times above, ALL lies.
        Obviously? Now you are the mind reader to lying stars?
        Now you should admit that trump LIED.
        Now you should admit that you lied when you said trump didn't lie.
        Now you should admit that I never lied.

        1. Piss off ᛋᛋqrlsy, and stop lying about the Michigan Republican of the Year award.

          1. GOOD ONE!!!

            ". Nine unelected judges, Hand said, should not be allowed to substitute their constitutional values"

            SIX, not nine.

            Three are out to subvert the Constitution.

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            2. 6 are out to subvert it in some ways, and 3 in other ways. :).

              1. So far I’ve seen subversion only from the 3. What examples are there for the reverse?

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          2. Mother's Lament (ML) also known as Judas Iscariot.
            Fact: Republican of the Year Award. (Notice no "MAN)
            LIE: Man of the Year award.
            Fact: I never lied about any of this. (You lied twice in 3:56 post)
            ML January.13.2022 at 3:51 pm
            No, he was awarded a man of the year presentation from the Michigan Republicans.
            Lie number 1, no, he WAS awarded Republican of the Year award. Close but still a lie.
            ML January.13.2022 at 3:56 pm
            The stupid thing is that because Trump said he got the "Michigan Man of the Year Award", rather than the "Michigan Republican Man of the Year Award" he's some sort of liar.
            Lie number 2, No, he got Republican of the year award. Close but no cookie. Lie number 3, he won Republican of the year award. 3 strikes.
            Side note: trump has lied 100,000+ times in his life and it is almost assumed when he says something, it is a lie. He is some SORT of liar. You're a liar "MAN".
            ML January.13.2022 at 4:00 pm
            Every link is from the same debunked source.
            Lie number 4, No, Google is not a debunked source, Info Wars is.
            January.13.2022 at 4:03 pm
            Hey, when are you going to apologize for lying about the Michigan Republican Man of the year award?
            Lie number 5, No, just something floating around in his and your pea brain.
            ML January.13.2022 at 4:06 pm
            Hey, are you ever going to apologize for lying about the Michigan Republican Man of the year award?
            Lie number 6 Trump was told many times this award didn't exist, but you lied about it more than he did.
            Didn't you ever learn not to lie? Leviticus 19:11“’Do not LIE. “’Do not DECEIVE one another.
            ML January.13.2022 at 6:11 pm
            Trump was obviously talking about the Michigan Republican of the Year award.
            You FINALLY got the award that he won (no "MAN".) Why didn't you notice he was lying about.
            the Man of the Year award? If he
            hadn't been called on his lie so many times, he would still be lying about this fictious award.
            ANY post by you that mentions "MAN" is a lie by you or Trump. You mentioned "MAN" five times above, ALL lies.
            Obviously? Now you are the mind reader to lying stars?
            Now you should admit that trump LIED.
            Now you should admit that you lied when you said trump didn't lie.
            Now you should admit that I never lied.

            1. Jesus Christ. You should save up all your meds for a week, and then down them with a bottle of rubbing alcohol.

              1. Methyl alcohol.

                Does wonders for the eyesight.

                1. If that's a Christian, it's under the New Dispensation, so it should stop frothing about Old Testament law. - Your village atheist

                2. No, he should just drink Drano.

          3. EVERYONE, even you, are telling the truth about the Michigan Republican of the Year award. That is why trump chose it to cover up his years long lying about his fake "MAN" of the year award. ML January.13.2022 at 6:11 pm
            Trump was obviously talking about the Michigan Republican of the Year award.
            You FINALLY got the award that he won (no "MAN".) Why didn't you notice he was lying about the Man of the Year award? If he
            hadn't been called on his lie so many times, he would still be lying about this fictious award.
            ANY post by you that mentions "MAN" is a lie by you or Trump. You mentioned "MAN" five times above, ALL lies

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  2. There are few liberals remaining. The bag in box brigade has shifted to progressivism.

    1. Damon Root thinks ‘Vox’ is liberal.

    2. Liberal.

      540 BILLION dollars in charitable donations in the US.

      My guess is that these radical progs arent high on the giving list.

      1. Progs are the least philanthropic Americans. Proven fact.

        1. Government IS a charity for them. Their favorite.

    3. But they were mostly limousine liberals. Are they now pretend progressives?

      1. Bikeshare Bolsheviks.

  3. The core of progressivism is that the gov should have total power to force people to do what's "best" for society.
    From knowing this you can easily tell that they will hate judicial review if it in any way limits their power

    1. Hey, those people worked hard to convince themselves and their clique members that they are elites and know better. How dare you challenge their right to rule?

    2. that was Nazi Germant to a T.

  4. The role of the federal courts, as James Madison once put it, is to stand as "an impenetrable bulwark against every assumption of power in the legislative or executive."

    This is the crux of it. We need the judiciary to protect us from the malignant effect of progressivism, and their adherents.

    1. We need a judiciary to keep the other branches within the confines of powers enumerated by the Constitution, regardless of the party in charge.

      1. It is, of course, imperfect, but of the three branches of Federal government the Judicial is the most sane and functional. I think it’s because the Justices are concerned for their reputation and legacy as legal scholars, and are not worrying about getting re-elected.

        The other two branches are totally taken up in pandering. And look how the few people with some principles, such as Manchin or Romney, are treated.

        1. “Reputation and legacy…”

          They only thing they should be concerned about is accurately applying the law. Period.

          1. Dred Scott is a super-precedent!

      2. We need a judiciary to keep the other branches within the confines of powers enumerated by the Constitution, regardless of the party in charge.

        How’s that working out for ya?

        Vax mandates for healthcare workers - just like the FFs designed it.

        1. I have no doubt the founding fathers would have been thrilled to have vaccinations for all the deadly diseases they had to contend with in those days.

          They probably would have considered vaccination mandates as state or local level matters, but I’ll bet they would at least acknowledge that a vaccination mandate for doctors and nurses and such has a rational goal.

          1. They DID have vaccines during the revolutionary war. George Washington had his voluntary troops inoculated with a crude smallpox vaccine. This was done contrary to a 1776 proclamation by the Continental Congress prohibiting inoculations.

            1. Amy Lynn Filsinger & Raymond Dwek, "George Washington and the First Mass Military Inoculation", John W. Kluge Center, Library of Congress, 12 Feb 2009.

              https://www.loc.gov/rr/scitech/GW&smallpoxinoculation.html

            2. And current soldiers get all sorts of vaccinations involuntarily. It’s the military.

              Last I checked healthcare workers were civilians.

    2. Except the courts keep granting the government more and more power. See Obamacare as an example.

      1. The courts don't grant them anything. People just bring cases to them, and they decide who was right according to what the rules say about the situation.

        1. Penaltax was a completely new judicial philosophy to get around a loser of a case for Obama.

        2. I wish that was true, but the court is just as political as any branch of government. They're supposed to look at the rules and use them as premises working forward to a conclusion. Instead they work backwards from conclusions and create twisted legal reasoning to justify them.

          1. Even if they do that, that's not a grant. You give them questions, they give you their answers. Not their fault if what the consequences of the questions that you brought to them are.

            1. Or if they decide to inject entirely new things into the case or create new powers just to get to their desired goals. Come on, you're smarter than believing that judges are done sort of neutral arbiters of fact through the lens of the Constitution.

    3. sarc needs progressivism to protect him from having to be productive.

      1. Most of his energy is devoted to drinking cheap booze and ranting and raving here about how much he hates conservatives and Trump.

    4. No, the crux of it is deciding disputes brought before them. The USA comes with its own specified dispute resolution system, just as insurance companies and so forth do. All this impenetrable bulwark stuff is just how some people see it.

      1. This is the crux of it. We need the judiciary to protect us from the malignant effect[s] of progressivism

        No

        No? No to what? We don't need the judiciary to protect us from the malignant effects of progressivism? The effects of progressivism are benevolent? What exactly are you saying?

  5. TL;DR (yet), but I have just one thing to say about judicial review: If people have a legal dispute, and part of the dispute is about what the words in the law mean, HOW THE FUCK COULD YOU NOT HAVE JUDICIAL REVIEW? That's all judicial review is: deciding what the law means. Doesn't matter whether it's a constitution, a statute or ordinance, a regulation or rule, or a license or contract. Who ya gonna call, Ghostbusters?

    Is anyone actually arguing that judges should decide cases WITHOUT figuring out what the law is?

    1. Yes, the progressives are arguing exactly that

      1. What do they want, a wheel of fortune in the back room? A chuck-a-luck cage? Fortune cookies?

        1. They want total, absolute power.
          They are totalitarian cancer.

          1. Something like the Chinese Communist Party. ‘Xi is not a dictator’ Bloomberg said it out loud.

            1. Suck that little yellow dick.

              1. We could bring back trial by combat, but it didn't do any box office.

          2. If they wanted total, absolute power, they'd just go and get it. They wouldn't take you to court.

            1. Your comments are getting progressively dumber.

            2. What the fuck do you think they've been doing?

            3. If they wanted total, absolute power, they'd just go and get it. They wouldn't take you to court.

              The antifa and BLM wing is trying that, while the Prog politicians chip away at the legal system. We are fighting a two front war against totalitarianism, and most don’t even realize it.

          3. We need to focus on removing them. An election just removes them from office. Which is not enough.

    2. Hmm, seems like it would be a good idea to have some review of what the letter of the law means while a law is still a bill, not waiting until years after passage.

      I guess this is one of the things Congresspersons were supposed to do: read bills, consider what they say, and debate them. Sigh.

      1. The Court has taken a position of legislative deference. Meaning if a bill went through the legislative process then by default it's within the bounds of whatever constitution applies. Presumed constitutional until proven otherwise.

        To me that's backwards. The burden of proof should be on the people writing legislation, not people challenging it.

        1. I still stand by my prediction that Congress will get to the point someday where they pass “laws” that are just PowerPoint slides with bullet points, then leave it to bureaucrats and Executive Orders to fill in the details.

          1. Which should be struck down quickly.

          2. That’s almost what they do now.

      2. Sorry, we have to pass it to see what is in it.

    3. Mob Rule, Baby! As long as my Mob is in Charge!

  6. In 1914 Hand had joined Herbert Croly in founding The New Republic

    If only he'd joined Aleister Crowley instead.

    1. Founding the New Thelema instead?

  7. The U.S. Supreme Court's celebrated power of judicial review, Hand declared in a lecture at Harvard Law School, was fundamentally illegitimate.

    ...Hand said, the Supreme Court's use of judicial review was a "patent usurpation" by which the judiciary overruled the wishes of popular majorities and transformed itself into "a third legislative chamber."

    Their use of judicial review. Not judicial review itself! Otherwise it's like saying courts should rule on cases without trying to understand what the law is.

  8. this authority is firmly located in the Constitution and fully inherent in the judicial branch. According to Article III, Section 1, "the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The Framers and ratifiers of the Constitution understood the phrase "the judicial power" to include the power of federal judges to nullify legislative and executive acts that violate the Constitution, which is the power that we call judicial review.

    Oh, horse shit. Know who invests them with judicial power? The parties who bring the case to them. If you don't want them to decide a case, why are you bringing your case to them?

    And the bit about nullifying acts that violate the Constitution isn't in what you quoted. Rather, it's in article 6:

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    So you took a case to court. It'd be fatuous for the court to make a ruling without understanding the law. Part of that law is the US Constitution, which, plain as day, says it supersedes anything else and that the judges have to go by.

    Why do lawyers have to be so indirect about things like this? Guess that's how they make the big bux.

    1. "Oh, horse shit. Know who invests them with judicial power? The parties who bring the case to them. If you don't want them to decide a case, why are you bringing your case to them?"

      And thats the radical Progs method. They gave up on Legislation.

      They fabricate a social crisis, invent an injured Plaintiff and use Soros money to make law in the Courts system.

    2. If you don't want them to decide a case, why are you bringing your case to them?

      If you're the defendant, then you didn't bring the case to them, and you'll automatically lose if you don't show up. Is that a good enough "why"?

      1. Then why did the prosecutor bring it?

        And who else would you ask to decide it?

        1. SMH... Prosecutors bring bullshit cases all the time, overcharge to force a plea deal to pad their numbers for the next election.

  9. "Is that really the legal landscape that liberals want to see?"

    Liberals, like any partisan ideologues, believe the ends justifiy the means. The "legal" landscape is just a fiction of what is convenient for them and destructive for their opposition. They certainly do not actually believe in universal principles.

    And given that progressives actually hate restrictions on government, any structure or law that impedes "progress" is evil. You can judge government structure like they do: is it a council of elite dictators?

    1. Came here to say much the same. I've stopped calling them "progressives", what they are is much simpler: authoritarian. They want what they want, and whatever serves to give them what they want is pure and good, and whatever gets in their way is corrupt and evil.

      Understanding the authoritarian left is really quite easy. There's absolutely nothing sophisticated about them, no nuance whatsoever is needed to grasp what it is they're about.

      1. And their current rhetoric calls out any attempt to thwart their totalitarian power grab as "fascist". For some manipulative progressives, this is just another tactic. For the most delusional, they really believe any action to limit their power is just an opposition quest for power.

      2. If they were really as you describe, they wouldn't take cases to court, they'd just go and do whatever they wanted.

        1. Self described progressives make up less than 13% of the population, are the least likely to own firearms and the least likely to serve in the military
          Exactly how could they do whatever they wanted? This is a completely illogical statement on your part.

          1. They support their antifa ‘shock troops’ and BLM brown shirts.

      3. It’s this very demonization of one’s fellow Americans that is going to destroy our country, but, hey, it’s easier to hate them and justify your own side’s misdeeds by claiming victimhood.

        1. This sounds an awful lot like “whataboutism” to me White Mike.

  10. The Supreme Court, congress: isn’t it time we got rid of these inefficiencies?

    1. See my comment just above.

    2. No. Those arefine.

      They are Constitutional.

      The problem is Communist subversives IN those systems.

  11. Is there anything that progressives get right?

    1. Yes. They occasionally step in front of speeding trucks or OD.

  12. https://twitter.com/disclosetv/status/1482344708546482176?t=4NpIcuQka7iAmicACrCPyw&s=19

    NEW - Germany: President of the State Protection and Counter-Terrorism Agency (Verfassungsschutz) sees "new scene of enemies of the state" at protests against Covid restrictions, which can "no longer be clearly assigned to right-wing or left-wing extremism" (Welt)

    Covid protests: Germany's State Protection and Counter-Terrorism Agency identifies a new class of "enemies of the state."
    [Link]

    1. I'm thinking the state earned it's enemies.

    2. Einsatzgruppen will be used to remove these enemies, thus creating more Lebensraum.

    3. The best way to force a majority of the population to be dependent on totalitarian government/corporate handouts, is to destroy livelihoods, small private companies.

    4. yes, its The Jews again

      .

      1. Did NOT see that coming!

        1. oops...

          / sarc

          Forgot the sarcasm tag

      2. When did the Jews last have a state protection and counter-terrorism agency?

        1. Israel, Mossad. Next stupid question.

  13. liberals confronting a Republican-controlled legislature will have no opportunity to seek constitutional redress

    The progs are planning to exterminate the Republicans so that will not become a problem.

    1. As well they should, since anyone opposed to Joe Biden has declared their loyalty to Bull Conner, George Wallace, and Jefferson Davis and therefore are guilty of insurrection and are traitors to America. No joke.

      But Joe Biden says the quiet part out loud. It's not about who gets to vote, it's about election subversion and who gets to count the vote.

      1. Yes, the process is irrelevant.

        They can hide manipulating the final count.

        There needs to be a death sentence for that.

      2. I’m surprised Biden didn’t fuck it up and say “Bull from Night Court, George Jefferson and David Wallace”.

        1. George Jefferson was certainly a racist.

      3. Biden has a long history of plagiarism but stealing lines from Stalin is pretty bold even for him.

  14. I'm of the opinion that, years from now when Trump is just a memory, Democrats will regret the extreme steps they've proposed or taken to thwart him and/or his agenda.

    1. Well, Jonathan Chait is ALREADY saying DeSantis is worse than Trump. Earlier than expected...but everybody expected this.

      1. Bidens SO bad theyre dusting off their second biggest failure, Hillary to run against him in 24...

        so Trump can humiliate her again!

      2. He went to a real school, so he may be just very very good at acting like a cousin-fucking meathead moron. In which case, he is more dangerous than Trump.

        1. Good. THAT is a ringing endorsement. Your anathema is America’s salvation.

      3. Chait is right on that score. DeSantis is a smarter version of Trump.

        1. Oh look the radical individualist says almost word for word exactly what Tony said. Completely an individualist. He says so in his name.

          1. When Tony's right, he's right.

        2. Unlike moron Trump, he probably knows that everyone has been talking about supply chains, not “supply changes”.

    2. Democrats never regret anything, they just deny they are responsible and blame Republicans, Christians, and/or the wealthy.

      1. Unlike Trump and his Republican faction, who are quite introspective and express regrets for times when they may have stepped over the line.

        1. Boy, White Mike, you seem to be laying the “whataboutism” on thick today.

        2. Unlike Trump and his Republican faction, who are quite introspective and express regrets for times when they may have stepped over the line.

          Quite right. Thanks for being so observant.

  15. The left really doesn’t like the U.S. or the constitution, or anything about anything, so there’s that. Joyless, angry, zealous idiots.

    Vox, a spin-off of Jacobin or CCP media?

    1. And the fools don’t understand that when the final straw breaks the camels back that they will be obliterated with a speed and ferocity that will astound them.

  16. The other part of Juducial Review is found in the E.O.process.

    Clinton tried to eliminate that.

    Read some E.O.s from Carter onward.

  17. I too was lured into support of judicial review thanks to the court's celebrated actions with respect to racist Southern horseshit. But the fact is the supreme court has been a conservative institution for its entire existence, including the Warren court, the one time in its history when liberals could claim victory with it, and which developed the mythology of its service as a protector of liberal values against the bigoted mob.

    But the plain fact is there needs to be a very good reason why the people shouldn't get their way, by majority vote. That's not because majorities are always right, but because minorities and individuals are fallible, often capricious and tyrannical themselves. At least with majority rule, most of us get what we want, and all we need to do to change things back is to convince 50%+1 that we're right. The project of living in a liberal democracy.

    Of course we're stuck with all three branches of the federal government being saturated in antidemocratic "checks," a situation that must have naturally appealed to men who didn't want women, black people, or poor people having any say in how things are run. It's just such a pickle: why are white male landowners the best at deciding how everyone should live? Why is it anything more than a power grab for themselves?

    An enlightened tyranny has been recognized as the best possible form of government since at least Plato, but the problem is that those who seek to be tyrants are rarely enlightened, and tyrants tend not to listen to reason. So fuck them. An equal say per human or explain why not. And it better be good.

    1. Never read CS Lewis I see. But I doubt you could read anything more complex than Dr. Seus.

      1. I doubt he can understand Dr, Seuss.

      2. I was forced to choke down that Christian apologist dreck, yes.

    2. Two wolves and a sheep deciding what to eat for dinner.

      I know it’s a complex analogy, Tony, but even your microscopic brain should be able to comprehend why simple majority rule is tyrannical.

      Or would you like CA Prop 8 to be the law?

      1. Oh, my perfect version of government has a constitution of basic civil rights beyond the reach of mere majorities about a half mile long. I didn't say supermajoritarian requirements were always bad, I said you had to have a damn good reason for them. "People who live in California deserve less representation than people in Bumfuck, Alabama, by a factor of 50, because slavery is good" is not one of those reasons.

        You wouldn't have two wolves and a sheep deciding on dinner. You'd have a wolf deciding on dinner for all three. You can point out the flaws in democracy but you never get around to explaining the virtues of tyranny.

        1. You seem not to be aware that we are the United STATES of America, not the People’s Democratic Republic of America.

        2. "People who live in California deserve less representation than people in Bumfuck, Alabama, by a factor of 50, because slavery is good" is not one of those reasons.

          The states united into a union under the condition that the powers of the federal government were strictly limited; progressives have violated that condition for a century. They also united under the condition that they would be equally represented in the Senate and proportionately represented in the House; progressives now want to undo that as well.

          If Californians don't want to be part of the United States, that's fine: they can go and leave.

          You wouldn't have two wolves and a sheep deciding on dinner. You'd have a wolf deciding on dinner for all three.

          Libertarians and conservatives don't believe that everybody should decide on what they are going to have for dinner and that their fellow citizens are off the menu.

          Oh, my perfect version of government has a constitution of basic civil rights beyond the reach of mere majorities about a half mile long.

          Yes, indeed, it is. That is what makes you a collectivist and a totalitarian.

    3. Majoritarianism gets you Hitler.

      But that’s what you obviously want, Tony.

      1. I see. And why bother with getting there democratically when we can just go straight to authoritarianism?

        1. I see. And why bother with getting there democratically when we can just go straight to authoritarianism?

          You tell me: that's your preference.

          My preference is subsidiarity, extremely limited government, free markets, and freedom of association.

  18. “ No judicial review means no Brown v. Board of Education, as Hand frankly acknowledged. No judicial review means no Griswold v. Connecticut (1965), which struck down a ban on birth control; it means no Roe v. Wade (1973), which struck down a ban on abortion; it means no Lawrence v. Texas (2003), which struck down a ban on "homosexual conduct"; it means no Obergefell v. Hodges (2015), which struck down a ban on gay marriage.”

    The question, in my mind, is did the states have the power to do any of those things in the first place.

    1. Not after passage of the 14A and 15A, but they still did it anyhow.

  19. Wtf is this, communist meme Saturday?

    We the People gave NO power to Governmemt in any Constitution, US or State.

    ". The role of the federal courts, as James Madison once put it, is to stand as "an impenetrable bulwark against every assumption of power in the legislative or executive."

  20. Q: What do progressives get wrong about judicial review?
    A: Pretty much everything - they don't want to break their streak.

  21. Judaical review is fine as long as the Justices stick to the Constitution, and forget about their big brother, equal outcome agenda.
    The Constitution does not give the Federal government the unlimited power of "Big Brother" nor does it give the promise of "equal outcomes", only equal opportunity.
    When Justices have an agenda rather than sticking to interpreting the Constitution we all lose.
    We just saw this with Justice Sotomayor who was willing to lie about the number, and call in the Armed Forces, and wrote an emotional appeal on the Vaccine mandate. This is unacceptable from any Supreme Court Justice regardless of Constitutional philosophy, political leaning or party affiliation.

    1. Sorry, I should have said emotional "minority opinion", not an appeal.

    2. Impeach the wise latinex. After Nov 22 there should be an opening.

  22. That apparently came from the “libertarians for kritarchy” desk.

    Given the massive number of radical leftists judges appointed by Obama and Biden, judges who don’t give a f*ck about the Constitution or law and who create positive rights out of thin air, I’d say Republicans and libertarians should stop supporting giving judges more power.

  23. Keep the system the way it is BUT add one final protector for natural rights, the right of the States (and I say States not State) to unilaterally make null and void any Federal law or decision if 2/3 of State Legislatures vote in favor. If we had this many of the post 1932 violations of the Constitution would not have occurred and most Federal Agencies created after 1960 would not exist (a very good thing) and their role if needed could be conducted at the State level. I don't get why the States rights to influence this discussion is always ignored. Like playing a football game and the umpire is a member of the Federal Team. Makes no sense.

    1. So you're against pretty much the entire modern world. You know, it's not the worst idea. The explosion of the human species thanks to 20th century technology, including the social welfare state, might very well doom us all.

      1. So you're against pretty much the entire modern world.

        Correct: the 20th century, with its genocides, racism, eugenics, colonialism, etc. is largely the product of progressive and leftist ideologies. Any decent person should be against that.

        The explosion of the human species thanks to 20th century technology, including the social welfare state, might very well doom us all.

        Technological and economic advancement was rapid in the 19th century, before progressivism and before the social welfare state. If we hadn't taken the progressive/socialist detour, we'd likely be wealthier and safer than we are now.

    2. The Constitution is clear that it takes precedence over any State-level legislation that contradicts it.

      And the only way such precedence can be enforced is with judicial review. I thank the author of this piece for pointing out that those at the Constitutional Convention unambiguously anticipated that such judicial review would exist. Too often it is claimed that no one explicitly envisioned unconstitutional laws being overturned by the courts until SCOTUS declared it had the power to do so in Marbury v. Madison. Clearly that is not actually true.

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  26. It is impossible for a court to settle constitutional conflicts without assessing the constitutionality of a law. That would be a drastic change in the USA's form of government.

    It didn't require enumeration, as the Framers were deeply motivated to escape the constitutional nightmare created by the government of the UK, which was formed after James II was deposed as Britain's last "sovereign", transferring that status to the Parliament of the UK. Every act of Parliament is the equivalent of a constitutional amendment in the USA. There is no judicial review. Courts do not resolve constitutional conflicts: they merely note instances where a conflict exists.

    Creating an American federation where each state legislature was free to enforce laws based on conflicting civil liberties and property rights would have been seen as a "suicide pact" for the federal union. The temporary exemption created for slavery was a required workaround.

    1. Creating an American federation where each state legislature was free to enforce laws based on conflicting civil liberties and property rights would have been seen as a "suicide pact" for the federal union.

      That's bullshit. Even today, there is wide variation among civil liberties and property rights among different states, and that is after most of the Bill of Rights has been incorporated.

      And freedom of speech wasn't incorporated until the 1920's, freedom of religion until the 1940's, unreasonable search and seizure until the 1960's, and the right to bear arms until 2010.

      For most of its existence, the American federation functioned just fine with wildly differing civil rights and liberties in the states. In fact, those variations are what made the US so successful and free in the first place.

  27. "tyranny of such majorities."

    Tyranny of the majority needs to make a comeback. I cringe every time someone implies that we're a majority rule democracy.

  28. What Progressives Get Wrong About _________________

    Forever headline

  29. The Demonrats dilemna is; how can they constitutionally set up a dictatorship.

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