Re: A Response to Ramesh

by Ramesh Ponnuru

The von Spakovsky and Slattery post is mis-titled, since it does not respond to anything I actually wrote. Start with paragraph 2:

Under Ramesh’s view of deference, if Congress made a legislative finding that the financial condition of the federal government (with its enormous deficit and debt) made it vital for the government to no longer provide “just compensation” when it seized private property, then the Court should defer to that finding and allow such a violation of the Fifth Amendment.

So in the authors’ imagination, the Court is doing the exact same thing when it ignores a specific constitutional command and when it refuses to read the word “appropriate” as free rein to write its own legislation. I’d rather not have such a foolish view attributed to me, thanks.

City of Boerne v. Flores does back up the authors: But so much the worse for Court in that terrible decision. What the Court meant by ”vital principles necessary to maintain separation of powers and the federal balance” was, simply, judicial supremacy.

As they reach their conclusion the authors cannot resist another rhetorical flourish:

Now is not the time for more deference. Alexander Hamilton wrote in Federalist No. 78 that the Court is “the bulwark of a limited constitution against legislative encroachments.” Ramesh would have the Court abandon that role.

Anyone urging judicial intervention could deploy that quote in precisely the same manner that von Spakovsky and Slattery do here, which is to say with no attention to the constitutional text or original understanding. An argument for deference in the kind of cases I wrote about — cases in which the Court is being asked to seize on ambiguous language to play a legislative role — is of course not an argument for judicial inaction in all cases.

And we could turn this kind of rhetoric against von Spakovsky and Slattery easily and accuse them of being judicial supremacists. The difference between their accusation and that one would be only that their rhetorical carelessness actually provides some justification for the latter.

Update: See also this post by Matt Franck for more context on that Hamilton quote.