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April 2012

Future tense, VIII: Enter totalitarian democracy

by Andrew C. McCarthy

On the difficulties of making law in the modern world.

I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.” The speaker was Associate Justice Ruth Bader Ginsburg of the United States Supreme Court. These, therefore, were astonishing words.

The authority over American law enjoyed by Justice Ginsburg and her colleagues on the Court owes solely to the existence of the U.S. Constitution, complemented by the high court’s proclamation that it has the last word on how that Constitution is to be construed. That latter power grab traces its roots back to Chief Justice John Marshall’s legendary 1803 opinion in Marbury v. Madison. Marshall “emphatically” declared it “the duty of the Judicial Department to say what the law is.” Despite naysayers from Jefferson to Lincoln, who thought that judicial supremacy would eviscerate popular sovereignty, Marshall&r ...

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Andrew C. McCarthy is the author of the The Grand Jihad (Encounter).


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This article originally appeared in The New Criterion, Volume 30 April 2012, on page 4

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