Why Oh Why Can't We Have a Better Press Corps?
Bookmarked at Del.icio.us for 2007-02-20

All Ten of the Constitutions-in-Exile Order Their Respective Mojitos

I count ten times in the past 225 years when judges--without any lead from legislators--have changed the law:

  • John Marshall's original judicial review power grab.
  • The privileging of entrepreneurial over other property interests in the early republic, as chronicled by Morty Horwitz's Transformation of American Law.
  • Roger B. Taney's attempt to entrench slavery in the territories, in Dred Scott.
  • The post-Civil War empowering of corporations with exorbitant privileges of citizenship and limited liability at the expense of government regulators and creditors.
  • The post-1890 empowering of managers of bankrupt enterprises, at the expense of shareholders and bondholders, to keep their enterprises running.
  • The early twentieth century claim that the Constitution enacts Spencer's Social Statics--that the Constitution's Commerce Clause does not say what it says.
  • The post-1937 rollback: the claim that the federal government does in fact have the power to regulate interstate commerce and thus economic activity as it wishes.
  • The Warren Court's declaration that the Constitution obliges it to do whatever it can to make this a free and equal country.
  • The Bork-Posner-led transformation and rollback of antitrust doctrine.
  • The Rehnquist trump: no matter what the law says, when an election is tied the right wing wins.

Is that rather a lot of constitutional moments, or rather a little?

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