Commentary Magazine


Topic: judicial dictatorship

New-Found Rage for “Judicial Dictatorship”

Columnists often fall into familiar patterns. For E.J. Dionne Jr., one of those patterns goes like this: if conservatives don’t act like liberals they’re not really conservatives. The latest example of this writing tic can be found in E.J.’s column today, in which he argues that the conservative Justices on the Supreme Court should – if they’re really and truly conservative – find an unconstitutional law to be constitutional.

There are some amusing elements to Dionne’s column, including his new-found concern about “a judicial dictatorship.” I’m delighted the scales have fallen from Dionne’s eyes, that he has embraced with passionate intensity the belief that “legislative power is supposed to rest in our government’s elected branches” and not with the judiciary. But I’m tempted to point out that a columnist who heretofore has been enchanted with the idea of a “living Constitution” – rootless, ever-evolving, with no fixed meaning, that is busy inventing new rights and jettisoning old ones – has lost the philosophical ground on which to make this objection (particularly when his objections are in fact baseless). Dionne also says that “conservative justices were obsessed with weird hypotheticals” – yet he fails to realize those “weird hypotheticals” served their purpose perfectly. They illustrated that there is no limiting principle for liberals when it comes to the power and reach of the federal government. (For more, see here.)

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Columnists often fall into familiar patterns. For E.J. Dionne Jr., one of those patterns goes like this: if conservatives don’t act like liberals they’re not really conservatives. The latest example of this writing tic can be found in E.J.’s column today, in which he argues that the conservative Justices on the Supreme Court should – if they’re really and truly conservative – find an unconstitutional law to be constitutional.

There are some amusing elements to Dionne’s column, including his new-found concern about “a judicial dictatorship.” I’m delighted the scales have fallen from Dionne’s eyes, that he has embraced with passionate intensity the belief that “legislative power is supposed to rest in our government’s elected branches” and not with the judiciary. But I’m tempted to point out that a columnist who heretofore has been enchanted with the idea of a “living Constitution” – rootless, ever-evolving, with no fixed meaning, that is busy inventing new rights and jettisoning old ones – has lost the philosophical ground on which to make this objection (particularly when his objections are in fact baseless). Dionne also says that “conservative justices were obsessed with weird hypotheticals” – yet he fails to realize those “weird hypotheticals” served their purpose perfectly. They illustrated that there is no limiting principle for liberals when it comes to the power and reach of the federal government. (For more, see here.)

But the most revealing thing about Dionne’s column is its tone: snide, angry, and condescending toward the conservatives on the Court. It is evidence that he and other progressives are beginning to lash out as they see Barack Obama’s health care law – an unworkable, unconstitutional monstrosity they were convinced was a permanent part of the American political landscape – slip through their fingers. If that in fact occurs – and I’ll believe it when I see it – then prepare for a level of rage from the left that we haven’t seen since the worst days of Bush Derangement Syndrome.

 

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