Ilya Shapiro at Commentary: Read it all for essential background.
Yes, depoliticizing the judiciary and toning down our confirmation process is a laudable goal, but that’ll happen only when judges go back to judging rather than bending over backward to ratify the constitutional abuses of the other branches.
The judiciary needs to once again hold politicians’—and bureaucrats’—feet to the constitutional fire by rejecting overly broad legislation of dubious constitutional warrant, thus curbing administrative-agency overreach and putting the ball back in Congress’s court. And by returning power back to the states, and the people. After all, the separation of powers and federalism exist not as some dry exercise in Madisonian political theory but as a means to that singular end of protecting our freedom.
These structural protections are the framers’ best stab at answering the eternal question of how you empower government to secure liberty while also building internal controls for self-policing. Or, as Madison famously put it in Federalist 51: “In framing a government which is to be administered by men over men [because men aren’t angels], the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.”
The reason we have these heated court battles is that the federal government is simply making too many decisions at a national level for such a large, diverse, and pluralistic country. There’s no more reason that there needs to be a one-size-fits-all health-care system, for example, than that zoning laws must be uniform in every city. Let federal legislators make the hard calls about truly national issues such as defense or interstate commerce, but let states and localities make most of the decisions that affect our daily lives. Let Texas be Texas, California be California, and Ohio be Ohio. That’s ultimately the only way we’re going to defuse tensions in Washington, whether in the halls of Congress or in the marble palace of the highest court in the land.
