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Lex Supreme Court
Essay  &  Liberty Law Talk
November 15, 2019
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Judicial Supremacy and the Constitution

with Greg Weiner

Contributing editor Greg Weiner discusses his new book The Political Constitution: The Case against Judicial Supremacy.

Greg Weiner is a contributing editor of Law & Liberty. He is Provost and Vice President of Academic Affairs at Assumption University, where he is also associate professor of political science. He is a visiting scholar at the American Enterprise Institute. Weiner is the author of Old Whigs: Burke, Lincoln, and the Politics of Prudence and The Political Constitution: The Case Against Judicial Supremacy. He tweets at @GregWeiner1.
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on November 15, 2019 at 07:48:27 am

If you want to fund the police and prison system, most people have to be living outside of prison, holding jobs, and paying taxes. That means any actions that are done by a sizable portion of the population (commonly done or in common use) can't be illegal, or they'll be in jail not paying taxes and the state will go bankrupt. And just to enforce the law most people outside of prison would have to be cops rather than civilians--in which case you'd have a police state rather a open, pluralist society of equals--and the pension system would quickly cause bankruptcy.

Now of course you could just kill tens of millions of people like in Russia or China until the minority that engages in the actions-you-want-to-outlaw have been exterminated. But assuming that genocide is not your modus operandi, you have to legalize anything that would prevent the prisons from filling up and the state going bankrupt.

That's why in Heller, Justice Scalia said the second amendment protects those self-defense tools "in common use at the time". This is axiomatic, since even without the second amendment, it would have to be this way since whatever's commonly done or in common use must be legal or the majority of people will be in prison rather than at work paying taxes--and to catch most of the people who break the law, you'd have to have the majority of non-imprisoned people employed as police, or judges, or full-time jury.

Now of course you could just not enforce the laws, but then the law will not garner obeidence and people will stop obeying the other laws-you-actually-really-wish-they'd-obey, cause one of those other laws might also might not be being enforced right now.

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Balanced Budget
on January 13, 2020 at 06:02:03 am

[…] Greg Weiner’s The Political Constitution: The Case Against Judicial Supremacy, is a new book in an emerging genre of constitutional literature that champions judicial restraint, […]

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Wanted: A republican Judiciary
on January 13, 2020 at 17:12:32 pm

This video can help the interviewer stop his distracting use of vocal fry: https://youtu.be/Y25rSDKVZwE

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Independence Intelligencer
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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

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