Tyranny of the Judiciary
Under the guise of following the Constitution, our legal elites usurp it.Four recent books show that “originalism”—the Madisonian doctrine that the Constitution should be interpreted as it was explained by Federalists during the ratification debates—continues to be deeply unfashionable in elite circles, even as the idea reaches a wider popular audience than ever before thanks to the Tea Party and other grassroots groups. From Harvard Law School to the Supreme Court, many of our most prestigious legal scholars are anti-Madisonian to the core.
Take Erwin Chemerinsky, dean of the University of California, Irvine School of Law. His The Conservative Assault on the Constitution is a paean in favor of judicial usurpation.
Then again, one must be careful here. Chemerinsky would not agree that “usurpation” is the right word, because nothing that he advocates is in his view inconsistent with the Constitution, rightly understood. That is because the Constitution, rightly understood, simply yields the outcomes he prefers.
So, for example, Chemerinsky recounts his father’s painful death. From his account, Chemerinsky concludes that the courts ought to read the Constitution as extending a right to physician-assisted suicide—or perhaps physician-administered homicide. His argument to that effect is entirely policy-based. In fact, the Constitution of his book’s title is simply the version of constitutional law that Chemerinsky wishes the courts, led by the Supreme Court, to impose.
As he puts it, “The real question that should have been addressed by the Court is whether the right to physician-assisted death is so basic to autonomy that it should be deemed a fundamental right. Put another way, is this right sufficiently analogous in its importance to the privacy rights that the Court has previously protected that it should be deemed a fundamental right?”...
Excerpt: Rest at headline link
