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Richard A. Epstein: When, How Should Courts Override Legislatures?

Please, do not miss this 1:26:33 of Prof. Epstein’s inimitable and marvellous discourse. Indescribably educational, and, of course, fascinating; and this one is particularly wide-ranging. My quibble-quotient here is tiny and is swamped by the education effect. The UT description:

Published on May 21, 2012

Richard A. Epstein, legal scholar and author, visits the Dole Institute to discuss courts grounds to invalidate the constitution.

Filmed on October 19, 2006 at the Dole Institute of Politics.


  1. The courts should over ride legislatures when they violate the Constitution.

    And the courts do NOT do that – for example, “impairing the obligation of contracts” – and legislatures do that all the time (with most of the regulations they pass), but the Supreme Court lets it slide.

    On the other hand the Supreme Court over rides legislatures when they do NOT violate the Constitution – for example by violating the “right” to abortion (no such right is in the Constitution of the United States, the court just made it up and called it a “privacy right”).

    The Supreme Court even altered the very structure of legislatures – but insisting that upper houses (State Senates) reflect population. The very point of the upper houses (the State Senates) was to NOT reflect population (to giver the rural areas a check on the cities that would dominate the lower houses of State legislatures.

    So there we have it.

    When the Supreme Court should over ride legislatures (including the U.S. Congress) because they have violated the Constitution – it normally does NOT.

    And (on the other hand) when the legislatures have NOT violated the Constitution – the Supreme Court often DOES over ride them.

    All this leads to the obvious question.

    Is there any point in keeping the Supreme Court and the rest of the Federal courts – with their judges appointed by the President of the United States.

    I do not think that (on balance) there is a good argument for keeping these courts.

  2. Julie near Chicago says:

    That may be, Paul, but can you imagine the fuss if anyone tried to get rid of them — especially the Supremes. The WO-O-ORRLLD would come to an end! ;)

  3. Mr Ed says:

    A Standing Army was a thing feared by many in the English-speaking World over the Centuries, but I have seen no comment on the greater peril of a Standing Judiciary, or even a Sitting One. Every legal dispute is simply a dispute resolution between parties at the end of the day, and there is no need for a permanent class of judges able to mould the law, albeit in a haphazard fashion as cases come before them, particularly as the permanent judge need not fear any impact on his private practice from his rulings, nor fear for his income from future parties willing to pay him to arbitrate.

    If a price of freedom is to abolish precedent and let parties appeal their own cases if needs be, then to rely on the plain words of a contract or statute, then judges could no more fix the law than fix a leaking radiator.

  4. Precedent (“case law”) is the great dodge of (especially) American courts – and it is not sincere.

    If it was sincere it would be a matter of “well what the Constitution says is not relevant – but at least we can find out what the law is by checking what the Supreme Court has previously ruled on this point”.

    Accept that the courts can (and do) create new “precedents” contradicting the old ones – thus making the law whatever the judges feel like.

  5. Julie near Chicago says:

    Please understand that I speak from an abundance of ignorance. But I am confused by the arguments against stare decisis, (precedent, case law) because I got the idea that that is essentially how the Common Law developed — by means of judges’ (however chosen) considering the decisions of other judges before them on similar cases, and then trying to apply the principles of the earlier judgments to the present case.

    UPDATE. In an attempt to amend my own ignorance, I just found Wikipedia’s article on stare decisis, which already has an explanation of the differences between that, “case law,” and “Common Law precedent.” It will take me some time to absorb this, but I thought that although neither Paul nor Mr. Ed needs the article, somebody else might find it helpful — if, of course, the information there is good. (More and more people are questioning Wikipedia’s reliability, and particularly in the areas of politics, law, and the social sciences.)

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