Sunday, November 10, 2002

Idiot law prof of the day. Cass R. Sunstein writes an op-ed in favor of the courts letting Congress do whatever it wants, regardless of Constitutional restrictions:
A Republican-controlled Senate has nothing to gain from judges who would read the Constitution to restrict its powers. And the nation itself has a great deal to lose.

Sunstein argues that 20th century conservatives have supported Oliver Wendell Holmes's idea that the Supreme Court should never strike down a law of Congress, but became activists when they got a majority. He says, "But the new judicial activists are beginning to dominate. Since 1995, the Supreme Court has struck down at least 26 acts of Congress on constitutional grounds."

Sunstein is an idiot. Holmes was not a conservative. Conservatives have always believed that the Constitution puts limits on the Congress as well as the other branches. Throughout the 20th century, conservatives have advocated the court upholding those limits.

Sunstein says that it is a "most damaging myth" that anyone could speak for the Constitution itself, as opposed to some personal political view. If he is right, then constitutional govt is a big sham, and the Constitution should be scrapped. What good is it, if it is impossible to interpret? He says that Republicans should be worried that if judges enforce the Constitution, then it might limit what a Republican President and Congress can do. Bingo! That's the whole point of having constitutional limits on govt.

Unfortunately, we really don't have judges who have the guts to strike down acts by the President and Congress. Sunstein claims that 26 acts have been struck down, but none had much significance. Nearly all of them were symbolic acts of no practical consequence. None have been comparable to the great activist rulings of the Warren Court, such as the decisions that forced drastic changes in schools, state legislatures, and police procedure.

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