[LMP] Fw: Judicial Review and Simon Says
- From: Sean Wilson <whoooo26505@xxxxxxxxx>
- To: metalaw@xxxxxxxxxxxxx
- Date: Sun, 3 Oct 2010 22:01:24 -0700 (PDT)
(On Judicial Review, history, constitutional systems. Sent to Meta-Law and
Wittrs).
Hello Miguel.
Thank you for your comments. I have my two of my own.
1. I don't quite understand the distinction between "judicial review" and
"judicial supremacy." To me, the latter is a feigned way of speaking. It
reminds
me of interest-group talk (pro-life, pro-choice). It doesn't understand
Hamilton. And it has a terrible European bias. In the mouths of Americans, it
sounds fanatical (tea-partyish). (Cf: "Jurocracy"). It also misunderstands the
sense of "constitution" that Americans largely invented. That's the part that I
think Europeans miss the most: that the sense of "constitution" is different in
other systems (e.g., parliamentary systems).
Imagine if, when professors graded exams, we started calling it "professor
supremacy" instead of "grading." Or imagine that I thought the common law the
only true and righteous law -- and I began calling democracy "voter supremacy."
2. I can't agree with you that American constitutionalism defines itself by
having a document that is unsure if it is law. What makes it law is quite
clear.
(1) It was codified and passed via a democratic ritual. (2) the statute-writers
(legislature) were not good enough to promulgate it, which makes it a different
kind of law. And (3) like all law, Americans go to Court to get it adjudicated.
The beauty of what the Americans did is that they created "a law for the law"
--
a legal process that enforces the legal process.
Bottom line: I don't mind people saying that the American system is crazy; but
what I do mind is people saying that Americans didn't invent it. Of course, the
central sin of the literature that flirts with this idea is that it is
presentistic. It also doesn't understand the phenomenon of social learning (a
sin shared with originalism). What I have said here is this: scholars
misunderstand the past by throwing their own world upon it.
Regards and thanks.
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
(Subscribe: http://ludwig.squarespace.com/sworg-subscribe/ )
SSRN papers: http://ssrn.com/author=596860
New Discussion Groups! http://ludwig.squarespace.com/discussionfora/
----- Original Message ----
From: Miguel Schor <mschor@xxxxxxxxxxx>
To: Sean Wilson <whoooo26505@xxxxxxxxx>
Cc: "conlawprof@xxxxxxxxxxxxxx" <conlawprof@xxxxxxxxxxxxxx>
Sent: Sun, October 3, 2010 10:04:39 PM
Subject: Re: Judicial Review and Simon Says
I think it useful to distinguish the concept of judicial review from that of
judicial supremacy. The arguments for the former are more straightforward than
the arguments for the latter. Insofar as judicial supremacy is concerned, the
evidence and arguments are mixed. I'll address primarily the empirical
evidence. Judicial supremacy has a reasonably high degree of acceptance in our
constitutional culture. But empirically neither elected officials nor the
American people have entirely bought the idea of judicial supremacy (except, of
course, when they agreed with the result). Perhaps the problem becomes clearer
if one were to accept the following revision to the last sentence of your first
paragraph (my additions are bracketed): "The fact that the Constitution is [not
entirely analogous to a ] legal document is what
makes American constitutionalism what it is." Miguel
On Oct 3, 2010, at 6:57 PM, Sean Wilson wrote:
>
> ... every time I teach this Marbury stuff, the arguments against judicial
> review -- and the silly nomenclature of "judicial supremacy" -- drive me up a
> wall. I'm sitting here going over the lecture material, and this one argument
> keeps coming up in various sources and scholarly work: "The Constitution
>doesn't
>
> say anything about judicial review." If a student would say this in a paper,
> I
> would find it to be a rather shallow account of how the logic of
> "constitution
> says" (Simon says) works. For example, as I read the vesting clause of
> Article
> III, the Supreme Court (and lower federal courts) is vested with the judicial
> power of the United States. And if the Constitution is the law, Marshall's
>logic
>
> is sound: the Court provides legal rulings about whether institutions violate
> the law (period). The fact that the Constitution is a legal document is what
> makes American constitutionalism what it is.
>
> But this just occurred to me. To those who make the argument "It doesn't say
>it"
>
> -- what about this logic: It's not specifically said in Article 1 or 2, which
> means that Congress and the President are forbidden to have anything to do
> with
>
>
> it. That is, they cannot have any efficacious power over whether their own
> acts -- or the actions of other branches -- are "Constitutional," because,
> the
> logic says, these branches only have specifically-enumerated powers.
>
> Here's what I am trying to say (terribly). Any grammar about "Simon says"
> seems
>
>
> to be on the side of Congress and the Executive NOT being allowed to make
> efficacious (legal) judgments about constitutionality. Wouldn't the people
> who
> believe in enumerated powers believe such judgments not within the
> jurisdiction
>
>
> of the "policy organs?"
>
> Therefore, if Congress were to create a body that certified that a piece of
> legislation was "constitutional," I would argue it violated not only
> the Montesquieuian logic of separation of powers, but the positivistic logic
> of
>
>
> Simon Says. Here's what I am really trying to say: Arguments about sharing
>the
> power over constitutionality are really fairness arguments. But the argument
> against the Court having the final say TRYS TO BE formalistic (it wants
> to resist fairness). But the logic of formalism really is more against this
> than for it. And it never occurs to people that they play Simon says when
> commerce issues are around, but not, in effect, when judicial review comes
>around.
>
> Regards and thanks.
>
> Dr. Sean Wilson, Esq.
> Assistant Professor
> Wright State University
> Personal Website: http://seanwilson.org
> (Subscribe: http://ludwig.squarespace.com/sworg-subscribe/ )
> SSRN papers: http://ssrn.com/author=596860
> New Discussion Groups! http://ludwig.squarespace.com/discussionfora/
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