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Saturday, February 13, 2010

Criticisms of Judicial Review

By Daryl Luna, Editor:
In Defense of the Constitution

On February 24, 1803, the Supreme Court of the United States handed down arguably the most important decision in its entire history—Marbury v. Madison. It was Chief Justice John Marshall—a Hamiltonian and no fan of limited government—who provided the opinion, which would change the face of the Court and its power forever.

The ruling itself is not what makes this case so significant. Rather, it is the power that the Court assumed while delivering this ruling that begs our attention—the power of judicial review. To most, the concept of judicial review is nothing controversial. Why would it be? Judicial review is merely the practice of the judicial branch overturning legislative and executive action it deems unconstitutional. In fact, a number of courts throughout the democratic world have this power expressly noted in their foundational documents. So what is the big deal?

First, the Constitution allows for no such judicial power. In fact, I am certain it forbids such power. Second, it is a dangerous doctrine that eats away at the very heart of our system of checks and balances.

The power of judicial review was fabricated by the Marshall Court as a tool to avoid controversy. Even the most mainstream Con-law scholars maintain that Marshall, not wanting to betray allegiance to his own Federalists and desiring to not be challenged by President Jefferson, cleverly crafted his argument for judicial review to circumvent the issue at hand. Clever it may have been, but constitutional it was not. Sadly, we have paid for Marshall’s endorsement for judicial review ever since.

Besides finding no power of judicial review anywhere in Article II of the Constitution’s provision of judicial powers, the Supremacy Clause found in Article VI presents a barrier against such a power.

It reads:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (My emphasis.)

Here we see the judges are to be bound to the Constitution and the laws of the land made in pursuance to the Constitution. This does not mean the Court must act unjustly by being bound to unconstitutional legislation, but it does mean that the Court cannot be above the law as some omniscient arbiter. Rather, the Congress makes laws and the judges must use those laws to rule in cases. No where throughout the document is the Court granted the power to overturn law by its opinion. In a nation founded on separation of powers, it cannot be so. For, if the Court possesses the power of judicial review, it has the power to legislate, veto, and drive executive policy all by the power of its opinion. That is the very definition of legal tyranny.

Though my position may sound extreme in today’s constitutional theory, such was not always the case. Save for Alexander Hamilton and some others who favored a strong centralized federal government, many of the Founders were against the idea of judicial review.

Constitutional Convention Delegate Robert Yates warned of its effect, “[I]n their decisions [the Court] will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the Supreme Court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications. From this court there is no appeal.”

Moreover, perhaps judicial review’s most ardent opponent Thomas Jefferson noted, “You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

We see in these two men’s words a reasoned warning against judicial review as each understood what such a power could entail. It was not that these men did not want fidelity to the Constitution across government; they wanted nothing less. The very reason each in government swears an oath of protection of the Constitution is that each is responsible for persevering constitutional action.

As Jefferson told Spencer Roane, “Each of the three departments has equally the right to decide for itself what is its duty under the Constitution…” Rather, than relying on one branch to be the ultimate word on the manner, Jefferson and others called on each to examine the constitutionality of acts as a means of preserving liberty. For as Madison note, “the meaning of the Constitution may as well be ascertained by the legislature as by the judicial authority.”

Things like an independent executive, an independent legislature, the ability to elect our representatives, nullification, states’ rights, and the like were to guard against constitutional infringement—not an overbearing Court. Even the Court must have realized this as even after the ruling in Marbury, it was some time before the Court invoked judicial review again and it did not receive it frequent usage until well into our modern age. Now sadly, it has become an all too common practice and the defining mark of an activist judiciary.

If we are to stop unconstitutional tyranny, we must not rely on the Court as our protector. In fact by relying on judicial review, we betray the very Constitution we are seeking to protect.


  1. Well, we see it really didn't take long before the Constitution was subverted. Melanchthon Smith wrote an essay during the ratification debates decrying the unlimited power granted to the judiciary by the proposed constitution. He and the other Anti-Federalists saw it coming. Why do we not recognize tyranny when it stares us in the face?

  2. I absolutely love our Constitution, but it definitely has some areas that would have been written differently if the Founding Fathers could have seen where we are today.

  3. Absolutely. Either that or it would never have been adopted at all.

  4. Your argument is self-contradictory.