Strengthening Constitutional Self-Government

No Left Turns

NYT and the separation of powers

Here’s the predictably simple-minded way in which the NYT editorial board understands the role of the judiciary under our Constitution:

Since the Supreme Court decided Marbury v. Madison in 1803, it has been clearly established that the courts have the ultimate power to interpret the Constitution. But right-wing ideologues, unhappy with some of the courts’ rulings, have begun to question this principle as part of a broader war on the federal judiciary.

The genius of the American system is that the founders carefully balanced power among three coequal branches. Mr. Hostettler’s amendment would throw out this brilliant structure, and 200 years of constitutional history, and make Congress the final interpreter of the Constitution.

I guess that in 1860 this editorial board would have defended the constitutional interpretation of the Taney court against that ideologue Abraham Lincoln, who was so presumptuous as to entertain a different interpretation of the Constitution. Or perhaps not. What matters, after all, is the result. When the courts support the correct result, the NYT supports them. When they don’t, who knows?

For a less simple-minded and results-oriented view of this issue, go here

Discussions - 1 Comment

"Simple-minded" indeed. Even gets Marbury v. Madison wrong. I recommend as an antidote to this simplistic thinking about the constitutional role of the judiciary, Larry Kramer’s recent book, The People Themselves. As brilliant and learned in its historical research as in its philosophy.

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