There is a lot to criticize about the Texas anti-abortion law, but trying to craft laws that subvert judicial review strikes me as something that people who call themselves "conservative" should not support.
Judicial review is a key component of our constitutional system.
Judicial review is a key component of our constitutional system.
As my friends on the right often remind me, ours is not a pure democracy. There are many pieces of the government that are specifically designed to make sure that majority opinion does not carry the day.
That is their response to complaints about the Senate and the filibuster.
That is their response to complaints about the Senate and the filibuster.
Judicial review is one feature of our constitutional system that can (and does) frustrate majority rule. Congress and states can't pass blatantly unconstitutional laws even if a majority of Americans support those laws.
In writing a law that can only be enforced through a private action, Texas lawmakers are trying to not only circumvent Roe v Wade, but also the very structure of our constitutional system itself.
And some conservative commentators are cheering them on.
This comment from Ed Whalen--that no one should actually file a lawsuit under SB8 so that the courts can't review the law--is a rallying cry to subvert the very structure of the Constituion.
This comment from Ed Whalen--that no one should actually file a lawsuit under SB8 so that the courts can't review the law--is a rallying cry to subvert the very structure of the Constituion.
The conservative legal movement has prides itself on adhering to "principles" such as textualism and originalism in order to avoid allowing personal policy preferences trump law.
They've also pointed to the structure of the Constitution as an important feature to protect rights.
They've also pointed to the structure of the Constitution as an important feature to protect rights.
But the structure of the Constitution shouldn't come into play only when it serves the policy goals that you like, and not the ones you don't.
Judicial review protects the 2nd Amendment and religious rights as well, even when the majority would restrict them.
Judicial review protects the 2nd Amendment and religious rights as well, even when the majority would restrict them.
In any event, I imagine that abortion is too polarizing of an issue for the people who support SB8 to admit what is happening here.
But when people like Whalen admit that they are trying to keep the courts from deciding constitutional issues, it's worth calling out.
But when people like Whalen admit that they are trying to keep the courts from deciding constitutional issues, it's worth calling out.
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