Walkback: Jay Carney Insists President Didn't Say What He Said About "Unelected" Judges; Eric Holder Admits Courts Can, And Do, Strike Down Laws

Jay Carney's on now; the party line is that the president was only saying the court would have to follow "eighty-plus years of judicial precedent" following Lochner (New Deal cases which basically ended the concept of "enumerated powers" in the economic sphere, the Commerce Clause supposedly trumping all else).

Earlier, Holder confesses the courts have "final say" on the constitutionality of laws.

"We respect the decisions made by the courts since Marbury v. Madison," Holder said Wednesday, referring to the landmark 1803 case that established the precedent of judicial review. "Courts have final say."

The comments come after a three-judge panel for the 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain its position by Thursday at noon....

Holder said Wednesday that "we are formulating a response now" and said the department's statement would be "appropriate."

Don't Hate Me Because I'm So Good At Constitutional Law

Green is not your color, dear.

Correction: I wrongly thought Lochner was the first of the pro-New Deal/statist control opinions, when in fact it is (rather famously) one of the libertarian/limited state power decisions that was later effectively reversed by the pro-New Deal coalition.

Lochner was a foundational case for Old Court, a libertarian-minded court,which patrolled for overreach by the federal government.

After Roosevelt threatened to pack the court, a 5-4 majority against his statist assertions of power because a 5-4 majority in favor of them. Lochner and its progeny were either expressly overruled or implicitly overruled, as no one cited them any longer.

posted by Ace at 02:12 PM

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