Here’s a letter to the New York Post:
Jonah Goldberg is absolutely correct to criticize pundits who insist that any effort by members of the legislative and executive branches of government to assess the constitutionality of a statute (in the words of Newsweek’s Ben Adler) “constitutes an encroachment on the judiciary” (“A supreme fetish,” Oct. 2).
As one maverick opined, “the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
That maverick was Abraham Lincoln, delivering his first inaugural address. And as Yale law professor Robert Burt explained in his 1992 book The Constitution in Conflict, Lincoln’s point was that “the Court’s claim to supremacy over the Congress in constitutional interpretation made it, in effect, a slavemaster and imposed a form of involuntary servitude upon the people” [p. 2].
Donald J. Boudreaux