Dan McClaughlin
National Review, Mar. 28, 2023
“The Biden administration, which never misses an opportunity to attack judicial review by independent courts in the United States or treat foreign policy as a proxy war against domestic enemies, has taken sides against the judicial overhaul.”
Be thankful that America has a written Constitution. The Founding Fathers were wise to write down the rules. The ratification of those rules by the people ensures democratic legitimacy for our courts in enforcing them against the political branches. Every American state likewise has a written constitution, ratified directly or indirectly by its people. Our courts are designed to check the periodic excesses of democracy, yet when they do so, they are enforcing the rule of written law made by the people — not overriding it.
Moreover, American courts are products of the elected branches. Federal judges are appointed by the executive and confirmed by the legislature. State judges are typically either appointed by the elected branches or directly elected by the people.
Written rules are especially crucial in times of conflict over power. I hesitate to consider how badly Donald Trump’s contest of the 2020 election would have gone if key actors in our own system (including Congress, Vice President Mike Pence, the courts, and governors and state legislatures) had not been guided by the Twelfth Amendment in understanding their duties and their oaths.
Without a written constitution, we might find ourselves facing the sort of constitutional crisis now wracking Israel. Israel’s elected parliament, the Knesset, is currently trying to stave off an anti-democratic coup by its judiciary. It has been ongoing for a while. Since 1995, Israel’s supreme court has claimed sweeping powers of judicial review unmoored from democratically written rules. The result has been to limit the power of the Israeli people to govern themselves, just as surely as if the country had a king or a theocratic council of clerics with a veto over legislation.
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