The Constitution’s enumerated powers don’t give the Supreme Court the vast powers it has today. The Founders wanted to focus power in the states in part because they believed it was wise to concentrate power closest to the people having disagreements. Our Founders didn’t have a naïve view of what we call “polarization” today. They viewed passionate debate as the natural outcome of a free and prosperous society. At the same time, they feared government would become unstable if regular citizens lost the ability to resolve differences to an overbearing central government that tried to right every wrong.
If senators love the Constitution as much as they say they do, they should define total victory not as vesting power in the court, but devolving power from the court. Republicans and Democrats should embrace, not fear, democracy.
Rather than allowing nine men and women in robes to decide the nation’s most difficult questions, the Senate should confirm judges who will return that power to citizens, legislators and local government. Give regular people a voice and the opportunity to be heard. Then let citizens of good faith fight it out and resolve policy battles in legislatures and local communities. That’s the American way. As Sen. Ben Sasse, a member of the Judiciary Committee, recently wrote, looking to Supreme Court justices as “superlegislators” is at the root of the dysfunction that has been on full display throughout this process.
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