A Letter to The NAM; A Critique of Selwyn Duke’s Analysis on Judicial Review and The Legacy of Justice Scalia


I wrote a Letter to The Editor of The New American Magazine (NAM) pertaining to some major flaws found in two articles from the March 21, 2016 edition. The two articles are both written by Selwyn Duke and are titled: The Late Antonin Scalia And The “Living Document” Lie and A Government Of, By, And For Judges: Who Will Be Our Next Oligarch?.

Due to these articles not being published online, I cannot link to them – and thus, will add some notes and additional text to attempt to make more clear to the reader who does not have access to the magazine articles what it is that is being communicated.

This letter is not the first time that I have communicated to the magazine, even over Selwyn Duke’s work specifically. I have explained two of the three problems below in a previous letter. One general theme that seems to be a consistent one in my critiques of the articles found in this magazine specifically pertain to the gap between the claim of loyalty to the “original constitution” on one hand, and the straw man arguments against the Supreme Court, even when they exercise authority that is clearly within the outline, structure, history and precedent of that very same original document.

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Chief Justice John Marshall

The earlier letter alluded and referred to in this letter was a much longer, more in-depth critique pertaining to simply to the fallacious claim that Judicial Review began (i.e. was created) in 1803 with the Marshall opinion in Marbury v. Madison. No matter how many times this claim is repeated, and no matter who it is that does the repeating – it is historically and empirically false.

In fact, we have – in the historical record – between the point of ratification and implementation of the Constitution of the United States (1789) and Marbury v. Madison (1803) many cases involving the use  of Judicial Review before Marbury.

There is a very good Stanford Law Review article from 2005 which analyzes 31 cases before Marbury v. Madisonin which a statute was invalidated and seven more in which, although the statute was upheld, one judge concluded that the statute was unconstitutional.

Therefore, the assertion that Chief Justice John Marshall, via the opinion of Marbury v. Madison – created “Judicial Review” is a myth. And like all other falsehoods, they remain so regardless of how often it is repeated or how broadly it is believed. Hopefully even honest libertarians will concede that simply because Ron Paul says it, doesn’t make it true.

Yet, in spite of the evidence – The NAM has simply chosen to constantly repeat the myth and continue to promote the falsehood. How Selwyn Duke, in spite of this evidence being brought to him, can continue to spout the hollow slogans pertaining the Marbury is unfortunate, to say the least. Marbury v. Madison was not a case that found for Judicial Supremacy, but Constitutional Supremacy.

If any of you, as an audience, care for any clarifications pertaining to statements made in the letter, or seek any specific sources on the many assertions, please feel free to comment below.

The NAM has yet to respond to the letter.

Below is the text of the letter with, admittedly, a few typos corrected. There are a few sentences completely in bold that have been added to attempt to further clarify for the audience here. Obviously, the letter was written for people who are familiar with the articles themselves as well as the content within and behind them; namely, the author, himself and the people at the magazine around him.That being said, with the additions to the text – I think it may be of interest to this audience.

Please note that in addition to dividing the points with headings for sake of good organization as a post – I have added some excerpts from the articles, which are italicized, at the beginning of each of the points for the sake of the audience here. The text of the letter will make more sense if more of the context of the articles are understood.

 

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INTRODUCTION

 

On 8/5 of last year, I sent a fairly detailed e-mail outlining many reasons as to why Selwyn Duke had formerly misinformed readers about Marbury v. Madison, Judicial Review and the Federal Court system, generally.

Whereas, at least on the issue of congressional regulation and judicial jurisdiction – Duke seems to have been much more nuanced in the recent piece (whether influenced by my letter or not) than in previous articles, he still has promoted fallacies which should be pointed out, even if they have been pointed out before. This is simply a partial re-iteration, mixed with a big point of criticism on his article on Scalia. For more details – I am sure Duke could consider the information in the earlier e-mail, or even additional correspondence could be in order.

I will try to keep it brief and simply mention a few of the many complaints. I hope that the points of criticism which I point out don’t give the impression that I don’t appreciate the good things which are covered and accurately explained in the articles.

The articles I am commenting on are both in the March 21, 2016 edition of The New American. They are specifically The Late Antonin Scalia and the ‘Living Document’ Lie, and A Government Of, By, and For Judges: Who Will Be Our Next Oligarch?

 

1. SCALIA: A CHAMPION OF ORIGINAL INTENT?

 

[Excerpt from pp.17-18: {On Scalia’s dissent in Obergefell} – “Scalia no doubt had very firm ideas about marriage, and one can imagine how he’d have voted on the matter had he been a legislator. But he wasn’t a legislator, and his point was that his role as a justice involved very different duties…

Unlike Chief Justice John Roberts, however, who once said that his job was merely to ‘call balls and strikes,’ Scalia actually walked the walk. He was what now is termed an ‘originalist,’ a jurist who interprets the Constitution as the framers intended, as opposed to fancying it a ‘living,’ ‘evolving,’ document. This gets at the stark reality: To have a problem with Scalia – someone merely faithful to the Constitution – is to have a problem with the Constitution itself.”

Notice that in the excerpt, Duke explicitly labels Scalia an originalist that “interprets the Constitution as the framers intended. This, as I will put in the letter – is not only factually inaccurate pertaining to Scalia’s methodology, but the definition given clearly oversimplifies originalism, itself. ]

 

Although I found the analysis of the “Originalism” vs. Evolutionary theories of interpretation to be generally fascinating, it seems that Scalia’s general approach was never really covered. Although the article claimed that Scalia was “merely faithful to the Constitution”, cases such as Bush v. Gore obviously demonstrate this was not always the case. That being said, Scalia was certainly the best on the court when it came to the text of the Constitution, and a force to be reckoned with when it came to legal method – as found in his fascinating and distinguishing approaches to Constitutional and Statutory Cases, respectively.

However, one who is not aware of Scalia’s jurisprudence before reading the article may come away thinking Scalia was simply an “originalist” – without an understanding of what kind of originalism he subscribed to. Scalia’s form of “originalism” is very different than the type often championed by people associated with The New American. In fact, the quotation on p. 20 from James Madison (who was certainly not the “Father” of the US Constitution) advocates a kind of Originalism that was not the kind to which Scalia gave his support.

Scalia did not support an interpretation of the Constution based on “original intent” whatsoever, but supported interpretation based on “original public meaning”. He dismissed evidence of the “intent” involved in creating texts – and simply desired knowledge of the public meaning of the words of the texts, themselves. In fact, Scalia promoted a textual approach which avoided any interpretation based on (to quote Madison) “the sense” by which the Constitution or any statute was adopted. He categorically dismissed constitutional and legislative history except insofar as it came to determinations about the public meanings of the words of the text.

These and other distinctions in kinds of Originalism can and do lead to different conclusions in many kinds of cases, including between Scalia and Thomas themselves. And, in fact, pg. 22 would have certainly been more accurate as a whole if Originalism would have been portrayed not as one, authoritative whole (which it is not, as unfortunate as that might be) – but as a philosophy that has differing branches with different emphases. As dangerous as an evolutionary approach may be, it does no good to the other (more correct) side of the argument to oversimplify and claim unity when there may be (too) little of it.

 

2. JUDICIAL REVIEW DOES NOT EQUAL JUDICIAL SUPREMACY

 

[Excerpt from p.19: “{It is a con} that ‘judicial review’ power {exists}, yielding a judicial supremacy in which court rulings constrain not just the judicial branch but the legislative and executive branches as well.”

Excerpt from p. 25: “{j}udicial supremacy (judicial review) {is} the idea that the courts have the final say on law’s meaning and that their judgments must constrain not just their governmental branch, but the other two as well. It’s also one of the big cons of our time.”]

 

No matter how many times anyone says it, Judicial Review does not equal Judicial Supremacy. Ruling upon cases involves interpretation of statute, precedent and even common law traditions and standards at times – no matter how you want to slice it. In fact, there are many many cases which do not even involve direct Constitutional issues, to say nothing of clear precedent.

For example, given the Constitution’s clear claim to exclusive legislative authority over federal territories – does Duke expect no appearance of Torts in such areas, even though not “simply outlined”, “granted”, or “delegated” in such a manner as a founding-era lawyer would not assume necessary, even if a modern-era journalist for the NAM might assume it as such?

And yet, how does ruling upon a statute generally, using individual cases as a vehicle for doing so – in any way prevent the exercise of constitutional authority by the other two branches? If courts were simply to “enforce” the law in a case, for example – then why have an executive? In fact, without such a power of interpretation so vilified in the article – what is the judicial power that IS to be exercised? It seems like the best that can be hoped for the asserted argument (namely, the fallacy of composition employed in equating judicial review and judicial supremacy) is simply planning on the audience agreeing, a priori, with the conclusion based on their own prejudice against the Court.

If there is not an ability to rule on constitutionality, is there even a purpose behind having an “independent judiciary”, in the first place? The title of the article, itself – in using the word “oligarchy” as a dis-qualifier, indicates the clear difference in attitude between a political scientist of the 18th Century attempting to frame an American Constitution, and a conservative commentator of the 21st Century working for the NAM. The whole point behind the relative independence of the judiciary was to have it fill more of the function of “artistocracy” in a stable system – along the lines of the political theories of Montesquieu, Machiavelli and Polybius. The court was designed to be unaccountable in a way that may incentivize the justices to be more likely and able to rule upon the law – without direct consequence from the ballot box. It was designed to be that way!

And yet, the criticism in the article comes not distinct and distant from a claim based on Originalism and admiration of the founders, i.e. claiming that “they” got it wrong or something similar; but, peculiarly enough, Duke is claiming allegiance to those very things broadly, as if the judiciary acting as a judiciary was in spite of “The Founders” – even as he shows very little evidence for a valid basis in doing so, or arguing the basic facts and assumptions pertaining to the design of the structure, itself.

To be clear, this isn’t at all about the red herring of proclaiming as either fact or fiction the “co-equality” of the branches, as if it was ever useful to claim that it is about a simple mathematical equation that is evenly or unevenly divided; In reality, it is about functions and forms. The Constitution isn’t a simple math equation with the total amount of words in each Article serving as a logical basis for asserting differences in importance between the branches – where, e.g. since Article One has the most words it follows that it must, therefore, be the most important. The ideas involved the forms and functions of each branch – including the overlaps in relation to the others.  The article has totally neglected the context of an 18th Century mechanistic view which involved detailed and developed views of functions and forms.

And ironically, not one passage from Marbury v. Madison – even if it did “create” judicial review (which it most certainly did not), does not ever claim judicial supremacy or rule that the court has the “final say”. I would once again challenge Mr. Duke to present the passages in which they did so, and the evidence that they were widely viewed as meaning so at the time – if he continues to think and assert such a bottomless claim. In fact, when one analyzes both the text and argument of the decision, Marshall not only does not assert judicial supremacy – but he asserts Constitutional supremacy. 

 

3. Did The Supreme Court in Marbury v. Madison (1803) Create Judicial Review?

 

[Excerpt from p. 25: “{t}he judicial branch has the power to review law and overrule the other two branches because the judicial branch granted it. That right: The Supreme Court gave the Supreme Court its trump-card power – in the 1803 Marbury v. Madison decision. And we’ve been obediently abiding by the rule of lawyers ever since.”]

 

The claim that “the Supreme Court gave the Supreme Court its trump-card power – in the 1803 Marbury v. Madison decision” is clearly and unequivocably false. This gets endlessly repeated, and it is wrong every time.

First off, to simply quote Jefferson is both convenient, historically – and ironic, culturally and morally given Selwyn Duke’s other writings. If Duke holds Madison’s views as “authoritative” based on his participation in the process – then how is Jefferson’s views de facto authoritative (on this issue) based on his non-participation in either the drafting or ratification of the document? It cannot be helped but said that Jefferson was a lawyer as well – in spite of the negative sentiments toward the position as found at points in the articles. It cannot be helped but said that Jefferson was not a traditional Christian – in spite of the cultural arguments that have come from Duke many times arguing against the views of people who hold such views, and in spite of more nuanced views on the matter held by an audience like myself.

Of course, like any modern attempt (right or left) to demean the power of the Court categorically – Duke has relied solely upon some quotations from the letters of Thomas Jefferson. Perhaps, relying on Jefferson in such an article is an attempt to simply “appeal to authority”and sidestep the argument at hand. An ethos appeal, and yet logos remains avoided. Why not include the views of others on such large issues, especially since the article seems to assume such wide prominence of such views? At least indicate why Jefferson’s opinion on this matter is authoritative, in the first place.

In fact, even Jefferson’s law professor and mentor (to say nothing of his being the First law professor in America), George Wythe, who was a very prominent legal authority on such matters – clearly argued in favor of a ‘Judicial Review’ power even before ratification of the US Constitution. Yet, even if one neglects Revolutionary Era precedents and started the clock with ratification – there are at least 21 cases in which a federal judge pronounced a statute unconstitutional BEFORE Marbury v. Madison. In fact, there are 3 cases BEFORE Marbury in which the Supreme Court exercised, in substance, judicial review over a congressional statute. In fact, as early as 1792 – A federal court invalidated even a state statute on constitutional grounds.

What was done in Marbury was clearly in line with constitutional understanding, precedent and practice – nearly every law school textbook and Duke’s article notwithstanding. Perhaps – to paraphrase – it could be said that to have a fundamental problem with Marbury – a case merely faithful to text, tradition and practice – is to have a problem with the Constitution itself.

As explained in my previous e-mail, the controversies associated with Marbury at the time were fundamentally political – not constitutional, even when the response from Jefferson based on the political results desired, was to make comments involving Constitutional issues.

There are many other points which could be made, but that will do for now.

Thank you for your time and consideration.

 

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– On James Madison not being the Father of the Constitution, see Novus Ordum Seclorum by Forrest McDonald (p. 207), in which, after consulting the evidence, he concludes that “[t]he myth that Madison was the father of the Constitution dies hard.” (See also The Federalist No. 38)

– A classic essay by Scalia on the issue of Originalism is titled Originalism: The Lesser EvilOne will notice the praise for Marbury v. Madison in this essay to be especially ironic given Selwyn Duke’s unequivocal endorsement of Scalia on the matter, without qualification.

– On Jefferson’s unorthodox “Christian” views relative to his contemporary context – see, e.g. herehere, and here. Of course, most of the quibble between the polemics on many sides of the historical issue of Jefferson’s religious views might be simply over the lack of semantic precision over what qualifies as “Christian”.

– Here are some examples of Ethos, Logos, and Pathos arguments for those interested in more clearly distinguishing between them. Obviously, all three have their strengths and weaknesses – however, the bias of myself seems to be as a presumption in favor of logos, complemented by the others.

– There are many quotations by Jefferson on the “tyranny” of the Supreme Court. (see here) However, the context of these considerations involved an entire body of fears concerning a supposed conspiracy among the Federalists to overturn the american precedents in favor of monarchy, or something similar. The fact that Duke doesn’t even acknowledge the executive overreach beyond strict constitutional bounds by Jefferson as the executive in the context of a case like Marbury indicates a flawed method of pedagogy, and history. If violating the Constitution is what is wrong in his view – perhaps an honest assessment (even criticism) of Jefferson’s action behind Marbury would be in order. And then, in terms of history: Perhaps Duke started with his conclusion, and then simply cherry-picked a couple of quotes he assumes the audience will unquestioningly support, to make it seem as though the preconceived conclusion is conclusive. What is ironic in the article is the simultaneous praise of “originalism” relative to the Constitution and lack of evidence to indicate Jefferson’s view was at all in line with the “intent” of the Framers/Founders of that document, or of the American people or a prominent segment thereof. In fact, scholars such as Richard K. Matthews have even pointed out that “Jefferson was never the spokesman of the dominant trend in American politics“. (The Radical Politics of Thomas Jefferson, p. 130)

At the very least, the debate is more complex than is indicated in these articles. One wonders if Jefferson (in his time) or Duke (in our own) would be critical of the Court if it happened to rule more often on the side of policies that they support.

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