Sunday, August 12, 2007

US = UK?

I've calmed down a bit, and would like to address the substance of Matthew Franck's post. Franck says:

the Kelo ruling on eminent domain was rightly decided;
the Supreme Court has no rightful authority to gainsay campaign finance laws;
to the extent they are based on the Constitution, the Court's rulings upholding affirmative action are unobjectionable;
I have yet to encounter a federal regulation of commerce that I thought the Court could properly overturn on nothing other than an interpretation of the commerce power;
the Court was wrong to invalidate President Truman's seizure of the steel mills in 1952.

All my "gee, I'm stuck with that one" conclusions involve criticisms on my part of the Court improperly using its power to void the acts of other authorities. It's hard for me to think of instances of the improper disuse of the Court's power.

What Franck describes is pretty much the constitution of the United Kingdom. Courts will try to interpret laws of Parliament as consistent with traditional common law and consitutional rights, but if the statute is clear, the court must give effect to it. This has not changed even with the Human Rights Act 1998. Courts can now give "declarations of incompatibility" if they conclude that statutes are inconsistent with the European Convention on Human Rights, but such a declaration has no real legal effect unless Parliament decides to act on it. Anyway, Parliament could always repeal the Human Rights Act, so it is more like our Bill of Rights than our Charter.

Further, there are no constitutionally mandated restrictions on the extent to which the UK Parliament can interfere with the elected bodies of the UK's sub-components. The Scottish Assembly's jurisdiction exists only to the extent the UK Parliament is pleased to grant it.

Franck's vision of the US Constitution is basically identical. I presume that state legislation is still vulnerable to the supremacy clause, but Congressional legislation is immune from judicial review -- either on the basis that it exceeds the enumerated powers of the federal government or for interfering with guaranteed rights.

That might be a desirable constitution, but it just isn't consistent with the text or history of the US document. If any claim to "originalism" is laughable, it is that one.

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