The Supreme Court and Judicial Review
The Supreme Court of the United States spends much, if not most, of its time on a task which is not delegated to the Supreme Court by the Constitution. That task is: Hearing cases wherein the constitutionality of a law or regulation is challenged. The Supreme Court's nine Justices attempt to sort out what is, and what is not constitutional. This process is known as Judicial Review. But the states, in drafting the Constitution, did not delegate such a power to the Supreme Court, or to any branch of the government.
Since the constitution does not give this power to the court, you might wonder how it came to be that the court assumed this responsibility. The answer is that the court just started doing it and no one has put a stop to it. This assumption of power took place first in 1794 when the Supreme Court declared an act of congress to be unconstitutional, but went largely unnoticed until the landmark case of Marbury v Madison in 1803. Marbury is significant less for the issue that it settled (between Marbury and Madison) than for the fact that Chief Justice John Marshall used Marbury to provide a rationale for judicial review. Since then, the idea that the Supreme Court should be the arbiter of constitutionality issues has become so ingrained that most people incorrectly believe that the Constitution granted this power to the federal judiciary.
Powers of the Supreme Court
Article III of the Constitution provides for the establishment of a Judicial branch of the federal government and Section 2 of that article enumerates the powers of the Supreme Court. Here is Section 2, in part:
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties
made, or which shall be made, under their Authority;
- to all Cases affecting Ambassadors, other public Ministers and Consuls;
- to all Cases of admiralty and maritime Jurisdiction;
- to Controversies to which the United States shall be a Party;
- to Controversies between two or more States;
- between a State and Citizens of another State;
- between Citizens of different States;
- between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Feel free to examine the entire text of Article III to assure yourself that no power of Judicial Review is granted by the Constitution.
"Well," you might say, "someone has to review laws for constitutionality. Why not the Supreme Court?" Some possible answers:
- First and foremost, it is not a power granted to the Supreme Court by the Constitution. When the Supreme Court exercises Judicial Review, it is acting unconstitutionally.
- It is a huge conflict of interest. The Federal Government is judging the constitutionality of its own laws. It is a classic case of "the fox guarding the hen house."
- The Constitution's "checks and balances" were designed to prevent any one branch of government (legislative, executive or judicial) from becoming too powerful and running roughshod over the other branches. There is no such system of checks and balances to protect the states and the people when multiple branches of government, acting in concert, erode and destroy the rights and powers of the states and the people.
- Even if the Supreme Court could be counted on to keep the Executive and Legislative branches from violating the Constitution, who is watching the Supreme Court and will prevent the Judicial branch from acting unconstitutionally? Unless you believe that the Supreme Court is infallible (and, demonstrably, it is not), then allowing the Supreme Court to be the sole arbiter of Constitutionality issues is obviously flawed.
- Justices are appointed, not elected and may only be removed for bad behavior (which has happened in the distant past but these days, appointment to the Supreme Court is like a lifetime appointment). If the court upholds unconstitutional laws, there is no recourse available. We the People cannot simply vote them out to correct the situation. Thomas Jefferson wrote, in 1823:
"At the establishment of our constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account."
It is the Constitution, not the Supreme Court, which is the Supreme Law of the Land. Even the Supreme Court should be accountable for overstepping Constitutional limits on federal power.
- Judicial review turns the Constitution on its head. The Judiciary was created as the weakest branch, controlled by both the Legislative and Executive branches. Judicial review makes the Judiciary master of both the Legislature and Ececutive, telling them both what that may and may not do.
There are only nine Justices and, under the current system, it takes only a simple majority — five votes — to determine a case. Given the supermajority requirement mandated by the Constitution to pass Constitutional amendments, a simple majority requirement by the Supreme Court, to uphold a suspect law, defies the spirit of the Constitution. If 44.44% of the Supreme Court justices (four of nine) think a law is not constitutional, we should err on the side of caution and declare it unconstitutional.
- The people and the states have little control over the makeup of the Supreme Court.
- Officials in all three branches of government take an oath of office to uphold the Constitution. The Supreme Court Justices, Senators, Congressmen, and Vice President, and other federal officers, all take an oath of office to "support and defend" the Constitution. (The president's oath of office in Article II, Section 1, requires that he "preserve, protect, and defend the Constitution of the United States.") Why is the Supreme Court's version of "constitutional" considered more authoritative? Is the Judicial branch more to be trusted than the Executive or Legislative branches? Prudence dictates that we be wary of all three branches (and especially wary of the one unaccountable branch).
- Given that it was the people and the states which established the Constitution, it is the states who should settle issues of constitutionality. The Constitution is a set of rules made by the states as to how the government should act. The "judicial review" paradigm allows the government to make its own rules with no say by the original rule-makers — the states.
- The Constitution was created by the states and any question as to the meaning of the Constitution is rightly settled by the states. When you make rules for your children, do you permit your children to interpret your rules in any manner they like? Of course not. Yet, the states are permitting the federal government — the "child" of the states — to do exactly that.
- Since the power of Judicial Review is not expressly granted to the Supreme Court by the Constitution, this power, per the tenth amendment, is "reserved to the States respectively, or to the people."
Read that last listed reason above again, for it contains the key to this site's being. The Constitution is very clear; any power to review laws to see if they are constitutional belongs to the states and to the people. Therefore, the Supreme Court is itself acting unconstitutionally when it exercises the power of 'Judicial Review.' It would require a Constitutional Amendment specifically granting this power to the court in order for 'Judicial Review' to be constitutional!
And just how should the determination of "constitutionality" be handled? For that answer, it helps to understand how the Constitution is (supposed to be) amended.
"The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."
"A judicial activist is a judge who interprets the Constitution to mean what it would have said if he, instead of the Founding Fathers, had written it."
"How strangely will the Tools of a Tyrant pervert the plain Meaning of Words!"
"Day by day, case by case, the court is busy redesigning a Constitution for a nation I do not recognize."
Justice Antonin Scalia