Bench Memos

Henry Waxman Endorses Judicial Supremacy

When Republicans take control of the House this week, they are expected to adopt a number of rules changes, including a requirement that every bill “be accompanied by a separate sheet of paper citing the constitutional authority to enact the proposed bill or joint resolution.”

Apparently, leading Democrats in the House disagree with the rule and would rather not even propose legislation that purports to be consistent with the Constitution. The Daily Caller reports that Rep. Barney Frank called it an “air kiss” to the Tea Party, and Rep. Henry Waxman reacted by saying, “When I went to law school they said the law’s what a judge says it is. Whether it is constitutional or not is going to be whether the Supreme Court says it is.” 

Mr. Waxman’s law professors weren’t the first to be wrong on that point, and I suspect he’d be less inclined to embrace judicial supremacy if he were reminded of Korematsu, Dred Scott, or Lochner — or, from his perspective at least, Citizens United. The Constitution is the supreme law of the land, not the Supreme Court or any other court, and the fact that judges are required to swear an oath to uphold the Constitution is just one piece of evidence that our society publicly recognizes that judges are just as capable of disregarding the Constitution as legislators and presidents. 

House Republican leaders deserve credit for publicly acknowledging their own fallibility and requiring congressmen to at least go through the exercise of identifying a source of constitutional authority for their important actions. As I wrote a couple of weeks ago when I touched on the importance and potentially salient benefits of this sort of rule:

I’m not naive enough to believe that such a move, on its own, would compel lawmakers to suddenly behave as though they care about limited constitutional government. But it would certainly be a big step in the right direction. If two decades of debating originalism conditioned the environment for Justice Kagan to sprinkle her Senate testimony with nuggets like “we are all originalists,” then perhaps small but important steps like these could condition the environment for the Constitution to regain its rightful place as the lodestar for officials in Congress.

Most Popular

Film & TV

Bill Murray: The King of Cool

Bill Murray’s Bill Murray impression is priceless in On the Rocks, the way John Wayne did a fantastic John Wayne parody in True Grit and Al Pacino found a new level of Pacino-ness in Scent of a Woman. I want to quote every line of dialogue Murray delivers in his new movie for Apple TV+ -- every hilarious piece ... Read More
Film & TV

Bill Murray: The King of Cool

Bill Murray’s Bill Murray impression is priceless in On the Rocks, the way John Wayne did a fantastic John Wayne parody in True Grit and Al Pacino found a new level of Pacino-ness in Scent of a Woman. I want to quote every line of dialogue Murray delivers in his new movie for Apple TV+ -- every hilarious piece ... Read More
Media

The Media’s Shameful Hunter Biden Abdication

In an interview with National Public Radio’s public editor today, Terence Samuel, managing editor for news, explained why readers haven’t seen any stories about the New York Post’s Hunter Biden email scoop. “We don’t want to waste our time on stories that are not really stories, and we don’t want ... Read More
Media

The Media’s Shameful Hunter Biden Abdication

In an interview with National Public Radio’s public editor today, Terence Samuel, managing editor for news, explained why readers haven’t seen any stories about the New York Post’s Hunter Biden email scoop. “We don’t want to waste our time on stories that are not really stories, and we don’t want ... Read More
Books

Orwell, Huxley, and Us

To hear some people tell it, America entered a dystopia long before the coronavirus and measures undertaken to combat it altered everyday life almost to the point of unrecognizability. As for which dystopia, and when, well — that depends on whom one asks. For many on the left, the annus horribilis was 2016, ... Read More
Books

Orwell, Huxley, and Us

To hear some people tell it, America entered a dystopia long before the coronavirus and measures undertaken to combat it altered everyday life almost to the point of unrecognizability. As for which dystopia, and when, well — that depends on whom one asks. For many on the left, the annus horribilis was 2016, ... Read More