Robert Nagel writes in:
Randy Barnett, a highly respected professor at the Georgetown Law School, has posted a reply to my National Review article, “Against Judicial Supremacy.” Barnett’s short essay is worth consideration because it clearly demonstrates why it is dangerous to rely as heavily as our country does on lawyers and judges to give meaning to the Constitution.
Barnett first asserts that Article III of the Constitution authorizes courts to set aside statutes they find to be unconstitutional. He then challenges me to explain why it would be “somehow illegitimate” for the courts to enforce limits to Congress’s power to regulate commerce by, for instance, invalidating ObamaCare. He then mounts a tendentious legal argument about the doctrinal standards used by the current Court to define “commerce among the states” in order to conclude that Obamacare is in fact unconstitutional.
In the essay to which this is supposedly a response, I directed attention to the political and cultural damage that is caused by heavy reliance on the judiciary for resolving constitutional issues. This damage includes the distancing of citizens from their own fundamental charter, an increase in conflict and alienation within the political arena, and a depletion of political self-confidence. Notice that these are not legal arguments. They are claims about the intellectual and social consequences of largely excluding the general population from the task of enforcing their Constitution.
The trouble with the judiciary in the modern era is that, dominated as it is by the mental habits common within the elite of the legal profession, judges have been heedless of the cultural and political costs of their efforts to enforce the Constitution. Instead, judges and lawyers confidently focus on their legal arguments and their arcane doctrines, refusing even to consider the damage they are inflicting on our society. And Professor Barnett does exactly the same.