Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Sunday, June 05, 2005

A Judge a Day Keeps the NKVD Away?

There's an interesting debate over at Legal Affairs between Professors Mark Tushnet and Erwin Chemerinsky over judicial review. My own views on this subject are all over the place, and I don't really want to get into it, except to point out this passage, by Chemerinsky:
Sometimes the first assignment in my constitutional class has been for students to read a copy of the Stalin-era Soviet Constitution and the United States Constitution. My students are always surprised to see that the Soviet Constitution has a far more elaborate statement of rights than the American Constitution. I also assign a description of life in the Gulags. I ask how it can be that a country with such detailed statements of rights in its constitution could have such horrible abuses.

The answer, of course, is that in the Soviet Union no court had the power to strike down any government action. Judicial review, as we have known it since Marbury v. Madison, is at the core of ensuring our freedom.
OK, that's bullshit, and it's bullshit that Tushnet doesn't adequately call him on. (He does bring up the helpful counterexample of Holland, which has neither judicial review nor slave labor camps.) It's not that the Soviets didn't have courts, or that those courts were pensive about assuming power not clearly given them; it's that the officers of those courts subscribed to the same murderous and dehumanizing philosophy as the rest of that country's political class. The United States hasn't had gulags or mass forced famines because we have a political culture that (with important and painful exceptions) basically respects the dignity of persons, liberty, the rule of law, etc. The courts have played an important role in safeguarding our liberties, but ultimately they're just epiphenomena of our broader cultural and philosophical commitments. I mean, if you'd transplanted the Warren Court to Moscow circa 1955, and they'd tried to fix things, what do you think would have happened? At best, they would have bemusedly ignored; at worst, shot as class traitors and subversives. Say what you will about the "Impeach Earl Warren" campaign; it's clearly preferable to a dark cell, an NKVD officer, and a .45.