Eagle Forum Legislative Alerts

Tuesday, May 19, 2015

New book against judicial supremacy

Michael S. Paulsen plugs his new book on the Constitution:
A consistent motif of the book is the recurrent myth of “judicial supremacy” in constitutional interpretation — a view that most textbook accounts (and law school casebook accounts) wrongly ascribe to the framing generation and to Marbury v. Madison. The power of constitutional interpretation, we observe at various points in the book, is not exclusively vested in the courts, with all other branches and officers of government bound to accept, unthinkingly and reflexively, whatever the courts decide. Rather, the power of constitutional interpretation is a divided, shared power incident to the functions of each of the branches of the national government — and to instruments of state governments, and of juries, as well — with none of these actors literally bound by the views of any of the others. ...

The courts have power to decide cases — and thus check Congress and the President — but little practical power to enforce their decisions, and none to command the other two branches.  As Alexander Hamilton wrote in The Federalist No. 78, the judicial branch “may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”  Indeed, if the courts could command the other two branches, that would violate Madison’s (and Montesquieu’s) rule that the accumulation of all power in one set of hands is “the very definition of tyranny.” 
There is already a favorable review by one of the US Supreme Court justices.

Phyllis Schlafly wrote a 2006 book making the same points.

No comments:

Post a Comment

Keep comments short. Long comments will be deleted.