Correspondence
CONCERNY RANDY BARNETT’S EXCELLENT ARTICLE in the September
issue (The
Wages of Crying ‘Restraint,’ TAS, September 2012), a
few observations on judicial review and tenure: In Marbury v.
Madison (1803), the United States Supreme Court established
its authority to review judicially and invalidate statutes it
believed to be unconstitutional.
Let’s look at the record:
In Dred Scott v. Sandford (1857), the Supreme Court
issued a ruling that made compromise impossible and was, therefore,
the immediate cause of the Civil War, which cost 600,000 lives.
In Brown v. Board of Education (1954), the Court ruled
that equality rather than excellence is the paramount requirement
of public education and thereby ruined it. Virtually no public
figure has since chosen to use public education for his or her
child.
In National Federation of Independent Business v.
Sebelius (2012), the Court upheld Congress’ power to enact
most provisions of the Patient Protection and Affordable Care Act
and the Health Care and Education Reconciliation Act (“Obamacare”),
including a requirement for most Americans to have health insurance
by 2014. The destruction of health care for all but the wealthiest
(who can get it overseas) looms.
Could we have done worse if Marbury v. Madison had been
decided the other way, e.g., to preclude judicial review? But,
gentle reader, supposing that you find value in judicial review
notwithstanding the Supreme Court’s train-wreck record, should the
justices be appointed for life rather than elected for terms? Would
not election moderate the abuses of judicial review?
Appointment and life tenure are in place in order to ensure
fierce independence from the pressures of politics. However, the
Court repeatedly bows to political pressures anyway. The Court
famously changed direction when frightened by the prospect of FDR’s
Court-packing plan. The event was summed up in the slogan, “A
switch in time saves nine.”
And we need look no further than the Obamacare decision and
Chief Justice Roberts. Fearing disapproval by the left-wing elite,
the chief justice found Obamacare to be a constitutional tax. In
doing so, he negated the very reason for, and justification of, his
privileged lifetime position.
The bottom line is this: Judicial review is at least as
destructive as beneficial. But, if retained, its evils can be
limited by requiring that the Supreme Court justices be elected to
finite terms of office. Since the Court bows supinely to political
pressures, those pressures should come from the electorate, not
sources to which the justices privately pander.
Peter S. Latham
Washington, D.C.
Randy Barnett replies:
MR. LATHAM IS RIGHT about one thing: The Supreme Court has a
long history of failure. But that failure, more often than not, is
a failure to stand up to Congress. Justices often bend to the
political winds simply because they are human and they share the
temperament of the times. But imposing term limits on justices and
appointing them more frequently will only make this worse.
Our system is premised on an elected president nominating and an
elected Senate confirming all justices. The problem is that for
years, Republican presidents have been barking up the wrong
tree.
They have deliberately sought “judicial conservatives” who will
“defer” to the executive and legislative branches. This gave us
John Roberts’ vote in NFIB. Instead, we need a president
to select justices who not only say they are committed to the
original meaning of the Constitution (which John Roberts never
did), but whose track records also show that they have the
character to stand up to public pressure and to actually follow
it.
For better or worse, under our system this is what elections are
for. Thankfully, for the first time in my lifetime, we are
witnessing the growth of a popular political movement whose core
concern is to restore the lost Constitution. But the key is for
conservatives and libertarians to repudiate the mantra of judicial
conservatism and “restraint,” and adopt instead a constitutional
conservatism that is committed first to the original meaning of the
founding document, and second to judicial “engagement” rather then
passivity.
As Paul Ryan likes to say: “We can do this.”
IN SPEAKING ABOUT INFLATION (“Taxes Won’t Save Us,”
TAS, October 2012), Tom Bethell notes that “the Federal
Reserve can buy government bonds with dollars created out of thin
air.” True. Now let’s put some numbers on this fact to get a sense
of the magnitude of the problem we’re facing.
The Fed purchased 61 percent of Washington’s 2011 $1.4 trillion
debt. That number has jumped to about 80 percent this year. Taken
together, the Fed now owns about 27 percent of the U.S.
government’s debt.
This trend—the high percentage of purchases by the Fed—is apt to
persist and increase in the future. Low interest rates discourage
prospective buyers from the private sector. And in spite of an
uptick in buying from those fleeing the euro, other major
purchasers of Washington’s debt are diminishing. China’s economy is
slowing down. Japan is facing a demographic crisis that will
collapse its saving rate. And the biggest holder of government
debt, the U.S. Social Security system, is quickly sliding from
generating a yearly surplus into deficit mode.
If current trends continue, don’t be surprised when the day
comes that the Fed starts to monetize diverse things like corporate
bonds, mortgages, insolvent student loans, bankrupt public-sector
pensions, and bonds of financially irresponsible states like
California, New York, and Illinois.
And if that is not enough to give you inflationary shudders,
consider this: When international banking elites get together, do
you think they can somehow concoct a rationale for why it is really
in the “best interest” of the U.S. to allow the PIIGS of Europe to
get their snouts in our trough, too? I don’t.
Peter Skurkiss
Stow, Ohio
