Judicial supremacy gave us Dred Scott. Liberals are making hay of Matthew Whitaker's views on Marbury v. Madison. Washington Post columnist Ruth Marcus, for example, writes that the newly appointed Attorney General is a crackpot, citing his comments to the blog Caffeinated Thoughts in 2014. Asked to name some of the worst Supreme Court decisions, Whitaker replied: "I would start with the idea of Marbury v. Madison. That's probably a good place to start and the way it's looked at the Supreme Court as the final arbiter of constitutional issues."
Is that really a crackpot view? Here is Robert George from a 2005 paper published by The Heritage Foundation:
It is worth remembering that the power of judicial review is nowhere mentioned in the Constitution. The courts themselves have claimed this power based on inferences drawn from the Constitution's identification of itself as supreme law, and the nature of the judicial office. Yet even if we credit these inferences, as I am inclined to do, it must be said that early supporters of judicial review, including Chief Justice Marshall himself, did not imagine that the federal and state courts would exercise the sweeping powers they have come to exercise today. [...]
As for Marshall's ruling in Marbury, a good case can be made that the power he actually claimed for the courts was quite limited. Remember: What the Supreme Court decided in that case was that the Court itself was forbidden by the Constitution to exercise original jurisdiction putatively conferred upon it by the Judiciary Act of 1789. Marshall reasoned that the Constitution, in Article III, fixed the Court's original jurisdiction, and Congress was powerless under the Constitution to expand it. According to the contemporary constitutional scholar Robert Lowry Clinton, all this meant was that the Court was relying on its own interpretation of the Constitution in deciding what it could and could not do within its own sphere. This was entirely consistent with its recognizing a like power of the other branches of government to interpret the Constitution for themselves in deciding what they could and could not do in carrying out their constitutional functions.
However that may be, the power of the judiciary has expanded massively. This expansion began slowly. Even if we read Marbury more broadly than Professor Clinton reads it, treating it as a case in which the justices presumed to tell the Congress what it could and could not do, it would be another fifty-four years before the Supreme Court would do it again. And it could not have chosen a worse occasion. [...]
In 1857, Chief Justice Roger Brooke Taney handed down an opinion for the Court in the case of Dred Scott v. Sandford. That opinion, which among other things declared even free blacks to be non-citizens, and Congress to be powerless to restrict slavery in the federal territories, intensified the debate about slavery and dramatically increased the prospects for civil war.
[Robert George, "Judicial Usurpation and the Constitution: Historical and Contemporary Issues," The Heritage Foundation, April 11, 2005]
On Veterans Day, thank a veteran. And remember the cost of bad decisions made in 1918-1919. Victor Davis Hanson writes:
Keeping the peace is sometimes even more difficult than winning a war.
For an enemy to accept defeat, it must be forced to understand why it lost, suffer the consequences of its aggressions—and only then be shown magnanimity and given help to rebuild.
Losers of a war cannot pick and choose when to quit fighting in enemy territory.
Had the Allies continued their offensives in the fall of 1918 and invaded Germany, the peace that followed might have more closely resembled the unconditional surrender and agreements that ended World War II, leading to far more than just 20 years of subsequent European calm.
Deterrence prevents war.
Germany invaded Belgium in 1914 because it was convinced that Britain would not send enough troops to aid its overwhelmed ally, France. Germany also assumed that isolationist America would not intervene.
Unfortunately, the Allies of 1939 later repeated the errors of 1914, and the result was World War II.
[Victor Davis Hanson, "The Lessons of the Failed Armistice of 1918," The Daily Signal, November 8]
More regulation makes more people poor. Dustin Chambers, Patrick McLaughlin, and Laura Stanley describe their new study:
We estimate the impact of federal regulations on poverty rates in the 50 US states using the recently created Federal Regulation and State Enterprise (FRASE) index, which is an industry-weighted measure of the burden of federal regulations at the state level. Controlling for many other factors known to influence poverty rates, we find a robust, positive and statistically significant relationship between the FRASE index and poverty rates across states. Specifically, we find that a 10% increase in the effective federal regulatory burden on a state is associated with an approximate 2.5% increase in the poverty rate. This paper fills an important gap in both the poverty and the regulation literatures because it is the first one to estimate the relationship between the two variables.
[Dustin Chambers, Patrick McLaughlin, and Laura Stanley, "Regulation and the Occurrence of Poverty Across the US States," Mercatus Center, October 30]
Ladies and gentleman, unions: "Education should not be a competitive endeavor," California Federation of Teachers president Joshua Pechthalt told the Sacramento Bee. He was responding to a GOP gubernatorial candidate's suggestion that better performing teachers be paid higher salaries.
The candidate lost, but there is one reason to think public policies that promote competition—and thus better services in government—have a chance in the future, as Steven Greenhut notes:
[T]he debate over merit pay reinforces the wisdom of the U.S. Supreme Court's recent Janus decision, which declared that teachers and other public employees are not required to pay union dues even to support collective-bargaining purposes. Justice Samuel Alito, wrote for the majority that such bargaining often involved "fundamental questions of education policy," so it's antithetical to the First Amendment to compel people to support ideas to which they don't agree.
"Should teacher pay be based on seniority, the better to retain experienced teachers?" Justice Alito asked. "Or should schools adopt merit-pay systems to encourage teachers to get the best results out of their students?" Public-school teachers no longer are forced to subsidize the opposition to merit pay and to reforms to the current tenure and seniority based system, but there's still a long process ahead to move toward the idea that Cox touted.
[Steven Greenhut, "California Teachers Unions Oppose Paying Teachers More Because It Would Introduce Too Much Competition Into Public Schools," Reason, November 9]
A plea for more federalism. David French writes:
It is absolutely clear from recent American history that the public likes a divided federal government. One party is able to enjoy dominance only for brief periods of time. But it's also clear that the public is choosing unified state government, and that those unified states are not scattered willy-nilly across the nation. Instead, they tend to be geographically contiguous with like-minded states and culturally distinct from competing regions. [...]
[W]e are moving to a new reality for modern America. Geographically contiguous, culturally similar, and economically potent American regions are now also increasingly politically uniform.
It is imperative that the national government adapt to this reality. One party or the other will of course control the White House and may (briefly) control both houses of the legislature, but if either party overreaches in its short period of total control, it will trigger a furious response. And the greater the attempted power grab (say, ending the legislative filibuster, followed by court-packing or single-payer), the greater the response.
Politically unified states can be bold. A federal government presiding over perilously divided American regions should be cautious. Any other approach will only increase the bitterness and rancor of American political life, and we cannot presume our nation will always survive its widespread rage.
[David French, "The Dangerously Unified States of America," National Review, November 9]
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