Wednesday, July 05, 2006

Meet Executive Supremacy, Same as Judicial Supremacy

The current disputes about executive authority and the judicial system have reminded me of an essay by legal great Robert P. George, Lincoln on Judicial Despotism.

George argues for a strong executive who would in matters of abortion rights both follow Lincoln's unilateral reinterpretation of Dredd Scott and emulate his focused disrespect for judicial authority:

"For Lincoln, then, the evil of the Dred Scott decision was not merely the expansion of slavery. It was that the decision threatened to undermine the basic principles of republican government precisely by establishing judicial supremacy in matters of constitutional interpretation. It was not merely that the Court decided the suit in favor of the wrong party. It was that the Court claimed authority to decide for the other branches once and for all what the Constitution required, thus placing them in a position of inferiority and subservience.


In office, Lincoln gave effect to his position against judicial supremacy by consistently refusing to treat the Dred Scott decision as creating a rule of law binding on the executive branch. His administration issued passports and other documents to free blacks, thus treating them as citizens of the United States despite the Court's denial of their status as citizens. He signed legislation that plainly placed restrictions on slavery in the western territories in defiance of Taney's ruling."

The parallels to contemporary political turf wars are obvious: selective interpretations, outright disobedience, and appeals to wartime necessity as the trump card of jursiprudence.

While attacking judicial supremacy under the banner of powers co-equal in authority, George's position has only aided arguments for executive supremacy. And executive power is being wielded not for the protection of the unborn, but for the ultimate authority of the president to define the scope of his wartime powers. Roe v. Wade, with the assistance of Robert P. George and George W. Bush, might have done far more damage to the rule of law than even the most pessimistic soothsayers have predicted.

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