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Wednesday, June 25, 2003

Tricky Dick 2.0 and Judicial Review-Orrin Judd had an interesting but bogus thought here on Gephardt.
"When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day," said Rep. Dick Gephardt of Missouri.
This is the first good idea we've heard from a Democratic presidential candidate. The Court should not have the final word on the Constitution.
We then had a back-and-forth in the comment section
Mark-Do you want to head to a point where a mere majority of Congress and the President can scrap the constitution? Getting rid of some of the stupider decisions would be nice, but would you really want a President Gephardt or a President Hillary with carte blanche to overhaul the Constitution? Orrin-No. I think it was an oversight of the Founders and should be dealt with in a Constitutional Convention. I'd allow the President a veto that must be upheld by both houses, but don't rule out the possibility that the issue might go to the statehouses or governors..
In Orrin's basic system, the President and Congress can tell the Supreme Court to go do an unnatural act with itself. One of the problems with his system is that the Constitution becomes whatever both ends of Pennsylvania Avenue say it is. This would move us towards the British system of an unwritten Constitution that can be amended by a majority of Parliament; for instance, the current government is in the process of taking away the House of Lord’s function as Britain’s supreme court and creating a new supreme court. Not too long before Marbury Vs. Madison, the Alien and Sedition Acts were enacted, which gutted political speech rights, a law that the Supreme Court would have shot down if the concept of judicial review took hold a decade sooner. Judicial review isn't explicitly written into the Constitution, but in Marbury, the Supreme Court took upon itself the duty to decide which laws and actions are constitutional. Without judicial review, the Constitution can be effectively amended with a mere majority of both houses and the President's signature, which would run counter to the amendment procedure that requires a two-thirds majority of each house and three-quarters of the states. Judicial review is a small-c conservative position, for it adds another hoop for bad ideas to jump through before they become law. In many cases, the Supreme Court has been asleep at the switch, allowing a lot of stuff to be passed in the catch-all Interstate Commerce clause; however, as of late, the court has been better at making Congress live within its delegated powers. At this point, it may be a flawed deliverer of checks and balances, but it still slows many bad ideas down, as well as some good ones. When the Supreme Court does something seemingly illogical, like Roe v Wade or the pair of UofM cases earlier this week, remember that they also block some bad liberal ideas as well. Conservative politicians would be more likely to respect tradition and the rule of law, so conservative presidents would both have less desire to end-run the Supreme Court and less need to. However, liberals would both have the desire and political need to gut the Constitution in order to achieve their goals, and the Living Constitution that can be modified by a mere majority of Congress and the President is one that will become a Dead Constitution in short order. Mark Twain used to quip that the Republic isn't safe as long as Congress is in session. That's why we need judicial review, even if you get the occasional Warren Court. It beats the heck out having the Alien and Sedition Acts or McCain-Feingold go unchallenged.

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