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Want Less Political Courts? Shift Power Away from Washington

October 6, 2018 in Economics

By Ilya Shapiro

Ilya Shapiro

The rule of law is supposed to be different from enforcing
policy preferences. Yet attaching partisan labels to judges has
become almost inevitable now because methods of legal
interpretation largely track with our ideologically sorted

If you’re an originalist — if you believe that the meaning
of a constitutional provision is the same now as when it was
ratified — only a Republican president will appoint you. If,
on the other hand, you think that the Constitution changes to adapt
to social norms, then you better hope for a Democratic White

The only lasting solution
is to devolve power to the states, so that far fewer big decisions
for the whole country are being made in Washington.

The contretemps over Brett Kavanaugh’s nomination is the
culmination of a tit-for-tat escalation between these competing
camps. It doesn’t really matter where it began. Today’s
brinksmanship in the Senate is symptomatic of a larger problem: the
self-corruption of the Supreme Court as it has aided and abetted
the expansion of federal power by Congress and the executive

For the nation’s first 150 years, the Supreme Court hardly ever
had to strike down a law because Congress generally stayed within
its bounds, subject also to the presidential veto. In 1887, for
example, President Cleveland vetoed an appropriation of $10,000 to
buy seeds for farmers in drought-stricken Texas because he could
find no constitutional warrant for such action. But as government
expanded, so did the laws and regulations over which the court has

It was during the Progressive Era that the idea emerged that the
General Welfare Clause justifies any legislation that gains a
congressional majority — as opposed to limiting
federal reach to truly national issues. After 1937, the court began
approving grandiose legislation of the sort it had previously
rejected. It wouldn’t again strike down legislation for exceeding
federal power until 1995. The New Deal court thus laid the
foundation for politicized judicial mischief of every stripe
— be it letting laws sail through that should be struck down
or striking down laws that should be upheld.

Depoliticizing judicial nominations is a laudable goal, but
that’ll happen only when judges stop ratifying the growth of the
federal government. And the only lasting solution is to devolve
power to the states, so that far fewer big decisions for the whole
country are being made in Washington. Federal courts will still
need to step in when local governments violate individual rights,
but there will be less political toxicity if the feds aren’t
constantly generating one-size-fits-all mandates.

And so whatever one thinks about Sen. Lindsey Graham’s role in
the Kavanaugh fight, he — and several …read more

Source: OP-EDS

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