Harvard Law professor forgets why judicial review exists

G.K. Chesterton, that extraordinary author and philosopher, once told a story about a fence blocking a road.

Two people approach it, and the first says, “I don’t see the use of this; let us clear it away.” The second person, however, is smarter and says, “If you don’t see the use of it, I won’t let you clear it away.” The point being that there may be a very good reason that the fence exists, even if you can’t see it.

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You’d think people as clever as Harvard law professors would appreciate this lesson. Law, after all, is the product of generations of cumulative reason and experience. Any lawyer worth his salt can give you a dozen examples of seemingly unnecessary laws that prevent evils we’ve long forgotten about—evils we have forgotten about precisely because our good laws have kept them at bay. The Third Amendment, which prohibits quartering of soldiers in homes, jumps to mind.

But if Mark Tushnet is a representative specimen of Harvard law professors or, worse, Biden administration advisers and officials, no fence is understood and no fence is safe.

Tushnet has published
a letter
to President Joe Biden demanding that the president
simply ignore
any decisions of the “MAGA” Supreme Court that, according to Tushnet’s political beliefs, are bad. Out with judicial review, in with a term-limited King of America.

Tushnet concedes that this power could be abused, but he takes solace in the assumption that if the president abuses it, the people can vote him out of office. He calls this “popular constitutionalism.”

There are lots of good reasons to oppose Tushnet’s proposal: It would make the president
a temporary dictator
; it’s
subjective and undemocratic
;
Republican presidents could do the same thing
; etc.

But the most astonishing thing is that Tushnet has forgotten why judicial review exists. He is eager to tear down that fence without a thought to the dangers that it keeps at bay.

Consider President Andrew Jackson, who modeled Tushnet’s strategy when he ignored a Supreme Court decision holding that Georgia unlawfully imprisoned people in violation of a treaty with several Indian tribes. The court ordered the state to release its prisoners, but Jackson refused to enforce the order. He then forced the tribes to accept a new treaty requiring them to leave Georgia in a march that would come to be known as the Trail of Tears.

Was Jackson right to do so? Tushnet has no problem in principle with Jackson ignoring the Supreme Court order. He could say only that he opposes Jackson’s decision as a matter of personal opinion. And if the people opposed Jackson’s decision, they could vote him out. Except the 10,000 to 20,000 Indians who died, of course. Sometimes, civil liberties can’t wait for the next election.

Another example: Tushnet’s approach would have to tolerate a racially segregated South. After the Supreme Court held in Brown v. Board of Education that southern states had to integrate their public schools, the southern states refused to comply. President Dwight Eisenhower deployed the National Guard to enforce the order.

If he hadn’t? That was his prerogative, says Tushnet. If the people didn’t like it, they could vote him out of office later. And if they did like it? Well … that’s not very pleasant if you’re a racial minority.

Take Japanese Americans during World War II. It was a gross violation of their civil liberties for President Franklin Roosevelt to put them in internment camps, which the Supreme Court unfortunately upheld. But what if, instead, it had ordered Roosevelt to stop? By Tushnet’s approach, Roosevelt would have been free to ignore the decision. Tushnet would probably say that Roosevelt should not ignore it, but he maintains that Roosevelt should have had the power to.

Free speech is where Tushnet’s approach really falls to pieces. Imagine that the government makes it a crime to say things that it doesn’t like. The court would rule that the speech is protected by the First Amendment, but Tushnet says that the president could ignore that decision.

According to Tushnet, if the president is wrong to ignore the decision, the people can vote him out at the next election. Only problem: Prisoners can’t vote in most states. Criminalize the speech of everyone who disagrees with you, ignore court decisions defending their civil rights, and voilà, your opponents can’t vote you out of office. So much for “popular constitutionalism.”

Tushnet presumably would oppose the use of power in those ways. But he has no problem in principle with presidents having that sort of power. He can object only to the ends at which this power is directed.

But what the Founders knew, and Tushnet has forgotten, is that power is like an angry bull—once you set it free, you can’t control the direction it charges. Judicial review is the fence that keeps that bull from doing any harm. It says that within its space, the bull is free to point wherever it wants, but it cannot get out into the town and visit a china shop.

Tushnet’s mistake is that he has forgotten why that fence exists. He would tear it down without realizing the danger that it keeps at bay. Let’s hope that Biden is like the second man in
Chesterton’s
story of the fence and refuses to follow Tushnet’s bad advice.

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This article originally appeared in the Daily Signal and is reprinted with kind permission from the Heritage Foundation.