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Supreme Court Justice Ruth Bader Ginsburg

While I am sorry to hear about the passing of Justice Ginsburg, the highly charged reactions on both ends of the spectrum that have followed her death only serve to underscore the dysfunction of American federalism.

Our constitutional framers never could have imagined that the federal courts would wield this much power over our lives and, moreover, that selections of justices would be charged with such hyper-partisanism. Moreover, they always assumed that policymaking was the prerogative of the legislative branch.

Why should we find this so surprising?  The practice of judicial review was established by a comparative judicial activist, Federalist Chief Justice John Marshall, and arguably was not even regarded as a implicit constitutional function of the court.

If the passing of Justice Ginsburg and the turmoil that inevitably will follow should drive home one lesson, it’s that our country is too damned big and too damned politically divided to govern centrally, whether this stewardship is exercised by a legislative branch that is simply too small to provide any realistic representation of 330 million people, a president who operates on the basis of the century-old and increasingly inadequate Wilsonian model of progressive centralism, or a nine-member panel of legal technocrats.