America Is Not British, and That’s a Good Thing
7th July 2024
Now, if only we could get Certain People to realize that….
The full implication of the Founding Fathers’ decisions (note the plural) to break from their mother country has never fully sunk in with many Americans. This is especially true when we consider and critique the decisions of the U.S. Supreme Court. Why? Because, paradoxically, the court often doesn’t do its job of striking down unconstitutional laws because it is too British.
Under the British system, courts don’t judge laws on their constitutionality. But across the pond, America’s system requires them to. When the Supreme Court says it can’t strike down a law because doing so would be “undemocratic” (a frequent justification), it’s actually saying, “No judicial review please, we’re British.” For example, last year, when the court reviewed a California law that threatened to raise the cost of pork throughout the country in violation of the Constitution’s commerce clause, it politely demurred because “[i]n a functioning democracy, policy choices like these usually belong to the people and their elected representatives.” Instead of making an excuse befitting a Jane Austen dinner party, the court would have been better off remembering why it was given the power to overrule a “democratic policy choice” after the American Revolution.