Ruth Marcus, the Deputy editorial page editor of the Washington Post, described Matthew G. Whitaker, Pres. Trump’s temporary replacement of Jeff Sessions as Attorney General as “a crackpot.”
What evidence does she offer for his crackpotedness?:
“There are so many,” he 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. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”
Reasonable people can differ over the constitutionality of the Affordable Care Act. Maybe there’s some space to debate the New Deal-era cases that cemented the authority of the regulatory state. But Marbury? This is lunacy. For any lawyer — certainly for one now at the helm of the Justice Department — to disagree with Marbury is like a physicist denouncing the laws of gravity.
No Supreme Court case is like the laws of gravity. The opinions of judges are not like the laws of physics. She goes on to explain how sacred Marbury v. Madison is:
Decided in 1803, at the dawn of the new republic, Marbury v. Madison is the foundational case of American constitutional law. It represents Chief Justice John Marshall’s declaration that the Supreme Court possesses the ultimate power to interpret the Constitution and determine the legitimacy of acts of Congress.
In Marshall’s famous words, “it is emphatically the duty of the judicial department to say what the law is.” The untested new Constitution provided that the Supreme Court possessed the “judicial Power of the United States,” but it did not define what that power entailed.
This means that five unelected judges are the Isacc Newtons of what the law is. Is this what our constitutional framers believed?
I suspect that liberals like Marcus believe this only about Supreme Court decisions they agree with. Let’s see what happens if Justice Ruth Bader Ginsburg retires or dies and Pres. Trump gets to nominate a constitutionalist to the Supreme Court and the Court begins to deliver decisions that Leftists detest.
What of Dred Scott and Plessy v. Ferguson? Were these decisions like the laws of gravity?
The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. — Abraham Lincoln
Here’s some of what Thomas Jefferson said on the subject. He must have been a crackpot, too.
- “The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.” —Thomas Jefferson to W. H. Torrance, 1815.
- “But the Chief Justice says, ‘There must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force.” —Thomas Jefferson to William Johnson, 1823.
- “But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best.” —Thomas Jefferson to John Cartwright, 1824.
- “The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” —Thomas Jefferson to Abigail Adams, 1804.
- “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.” —Thomas Jefferson to William C. Jarvis, 1820.
- “In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that ‘the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.’ If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scarecrow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” —Thomas Jefferson to Spencer Roane, 1819.
- “This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, [at one’s pleasure] by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.” —Thomas Jefferson to Edward Livingston, 1825.
- “My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal.” —Thomas Jefferson to Spencer Roane, 1819.