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The idea that I may not be familiar with this boilerplate law-school “history” truly is absurd. To the contrary, I’ve written a best-selling book arguing against it from beginning to end, largely on the basis of my numerous peer-reviewed articles in the top history journals.
“The professor” tells us that the Supreme Court “is a representative institution in that it attempts to do what is right for the nation as a whole,” and for that we have only the word of the judges and of their aiders and abettors in academia, the legal profession, and the media. I suppose that the Chinese premier or the president of Syria would describe himself in the same way: that he is representative in that he attempts to do what is right for the nation as a whole. As in the case of the Supreme Court’s legislation, the policies conferred upon the people by the Chinese and Syrian leaders are not susceptible to popular revision, let alone rejection. Their sad subjects simply have to take their word for it.
“The professor” tells us that, “The Constitution was designed to establish a republic, not a democracy, and its savior is the fact that the Court can do what is best for the nation as opposed to what is best for its electoral interest.” Since he had deigned to instruct me on the “design” of the Constitution, let me note that the role his syllabus and his comments here ascribe to the Court was not envisioned by anyone involved in approving the Constitution’s design; in fact, the only people who hinted that it might have anything akin to its current role were a few ANTIfederalists in New York. If any politician had said in the ratification process, “Federal judges will be better than elected officials because elections cloud people’s judgment,” as “the professor” does here, he would have been hooted down.
Since he is obviously unfamiliar with my best-selling constitutional history, not to mention with the best-selling book in the same field that Tom Woods and I co-authored, I suspect that “the professor” is also blissfully unaware of my account in JAMES MADISON AND THE MAKING OF AMERICA (JMMA) of Madison’s response to MCCULLOCH V. MARYLAND (1824). If the people had known the Constitution was going to be read that way, he said, they would never have ratified it. Both in JMMA and in my contribution to A COMPANION TO JAMES MADISON AND JAMES MONROE, I demonstrate that this is no doubt true.
Another way of putting it is that the system “the professor” advocates is completely unlike, in many ways contrary to, the one the people were sold in the ratification process. “The professor” likely doesn’t know this, as legal training in this area doesn’t extend far beyond reading a few old judicial opinions and a few excerpts from THE FEDERALIST. That’s why I like to say that once I graduated from a top-ten law school, I entered UVA’s PhD program to get an education.