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.


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