Timothy Sandefur of the Pacific Legal Foundation and the
Freespace blog
says my
post on judicial supremacy is "dangerous" and commits a "common modern error: confusing
Marbury with 'judicial supremacy.'" As for the first point, I fail to see what is so dangerous about my critique of
Marbury. Courts of Great Britain historically lacked power to throw out laws as unconstitutional, but who will seriously deny that the British people are free? As for his second point, Mr. Sandefur misreads my post, although perhaps I gave him an opening to do so. With respect to the meaning of
Marbury, I was quite careful to refer to "the modern interpretation of Marbury v. Madison - i.e., judicial supremacy." I then went on to take issue with
Marbury itself-i.e., the proposition that the Supreme Court should be able to strike down laws as unconstitutional-without drawing a clear distinction between the two modern and original conceptions, which may be the source of the confusion. It should have been clear that I was taking issue with both the modern and original conceptions of
Marbury, however, as I relied on the Jacksonian argument that the Supreme Court should not "control the Congress or the Executive when acting in their legislative capacities." If the Jacksonian position had prevailed, presumably we would have ended up with the sort of legislative supremacy Great Britain has enjoyed. Personally, I think that would be dangerous mainly to lawyers - of both the right and left - who make their living turning every social and political issue into a question for unelected judges to decide.