Delegitimizing the Supreme Court: just part of the broader agenda
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1832 — Popular Constitutionalism and the Trail of tears
Democrats urge states to ignore Supreme Court rulings they dislike
For months now, various Democrats and their media allies have repeatedly been trying to delegitimize the U.S. Supreme Court openly on television and social media.
Harvard law professor Mark Tushnet and a political scientist from the San Francisco State University named Aaron Belkin recently penned an open letter to Joe Biden urging him to embrace “Popular Constitutionalism.”
They published it at the Balkinization Blog:
An Open Letter to the Biden Administration on Popular Constitutionalism
Aaron Belkin and I have written the following open letter to the Biden administration urging that it endorse and take steps to implement popular constitutionalism as a response to what the President has described as “not a normal” Supreme Court. We urge readers to let the administration know in their own ways that reinvigorating the long and honored tradition of popular constitutionalism is both viable and urgently needed in today’s circumstances.
Professor Jonathan Turley wrote about this at The Hill:
Tyranny of the minority: Liberal law profs urge Biden to defy the courts and the public
“I shall resist any illegal federal court order.”
When “the Court’s interpretation of the Constitution is egregiously wrong,” the president should refuse to follow it.
Those two statements were made roughly 60 years apart. The first is from segregationist Alabama Gov. George Wallace (D). The second was made by two liberal professors this month.
In one of the most chilling developments in our history, the left has come to embrace the authoritarian language and logic of segregationists in calling for defiance and radical measures against the Supreme Court.
In a recent open letter, Harvard law professor Mark Tushnet and San Francisco State University political scientist Aaron Belkin called upon President Joe Biden to defy rulings of the Supreme Court that he considers “mistaken” in the name of “popular constitutionalism.” Thus, in light of the court’s bar on the use of race in college admissions, they argue that Biden should just continue to follow his own constitutional interpretation…
What is most striking about these professors is how they continue to claim they are defenders of democracy, yet seek to use unilateral executive authority to defy the courts and, in cases like the tuition forgiveness and affirmative action, the majority of the public.
Jim Thompson of RedState adds this:
America cannot function unless the three branches of government operate as they were intended. Congress passes laws, and if they comport to constitutional mandate, they are enforced by the executive branch. If they are not constitutional, the Supreme Court must strike down those laws, and the executive branch is mandated to abide by those decisions. What the president cannot do is simply act as a proxy king and ignore the Supreme Court.
Yet, here we are. That is what men like Tushnet and Belkin want and why they are dangerous.
[FWIW] This is a battle that’s been going on ever since Jefferson fought with Hamilton over the right and power of the courts to impose judicial review of legislation enacted by Congress.
While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.
Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.
The dispute was finally settled in favor of the Judiciary — temporarily, as it turned out – by Justice John Marshall in 1803. Those Democrats now advocating a “Popular Constitutionalism” are doing nothing original, they’re just urging a return to imperial rule, as first exercised by Andrew Jackson, who in 1832 refused to obey a ruling by the Supreme Court and forced tens of thousands of Cherokee Indians to leave their lands in the South and embark on The Trail of Tears” — 4,000 died on the trail, while those who survived were “settled” in the arid wastes of Oklahoma: “Marshall has made his decision, now let him enforce it.”
You can read a good history of the Imperial Presidency concept in this article. It was written by an author worried about Trump, ironically: she doesn’t seem to have weighed in yet on what Biden’s handlers are doing to expand the powers of the Executive Branch ten-fold ,and probably won’t — those are waters academics dare not approach — but it’s a good article nonetheless.
Will the Republic survive this latest attempt of the elite to turn citizens into subjects of the state? I’m not hopeful that it will.
