Judicial Review Is UnConstitutional

judge“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 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.” Thomas Jefferson, 1823

Contrary to popular belief, The Supreme Court is not the ultimate, sovereign institution in the U.S. nor was it ever meant to be such. Our founding fathers believed it to be the “least dangerous branch.” Alexander Hamilton in Federalist 78 wrote that the “legislative branch had the purse” and the “executive had the sword,” and all the “judiciary had is judgment.”

The first chief Justice, John Marshall, fearful that SCOTUS could become a powerless institution in American political life, used a political maneuver in Marbury v. Madison, 1803, to create the doctrine of Judicial Review which gave the Court the ability to declare acts of Congress unconstitutional. In writing the decision, John Marshall argued that acts of Congress in conflict with the Constitution are not law and therefore are non-binding to the courts, and that the judiciary’s first responsibility is always to uphold the Constitution. If two laws conflict, Marshall wrote, the court bears responsibility for deciding which law applies in any given case.

The Constitution did not give this power to the Court, they gave it to themselves. Judicial Review is a classic case of the “fox guarding the hen-house,” thus allowing the government to judge the constitutionality of its own laws. Unless you believe that SCOTUS is infallible and, demonstrably, it isn’t, then allowing them to be sole arbiter of constitutionality issues is obviously dangerous.

Michael Paulsen, co-author of The Constitution: An Introduction, also denounces “judicial supremacy” as a “recurrent myth.” “The power of constitutional interpretation is not exclusively vested in the courts, with all other branches and officers of government bound to accept, unthinkingly and reflexively, whatever the courts decide.” As an antidote to judicial supremacy, Paulsen defends what he calls “the propriety of executive and congressional non-acquiescence in judicial precedent that, in the independent judgment of these other actors, conflicts with the Constitution.”

Writing in support of Paulsen’s interpretation, National Review’s Ed Whelan states the case more bluntly. “We live in a legal culture besotted by the myth of judicial supremacy. According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning.” Whelan agrees with Hamilton’s Federalist 78, that the executive branch is the one with the sword, that the president is not duty bound to abide by SCOTUS rulings. The president takes an oath to uphold the Constitution and that should include stopping any attempt by another branch of the government to subvert it.

Andrew Jackson refused to enforce the Court’s decision in Cherokee Nation v. Georgia on Indian removal. Abraham Lincoln ignored Chief Justice Roger Taney’s order in Ex parte Merryman to end suspension of habeas corpus in early 1861. In his first inaugural address, Lincoln made it clear that the Court’s decision in Dred Scott could not preclude the political branches of government from going ahead and acting on slavery in the territories. He said that if it were otherwise “the people will have ceased to be their own rulers, having to that extend practically resigned their government into the hands of that eminent tribunal.

While Presidents in general have tended to see it as their duty to obey SCOTUS rulings, and, at times, even to enforce them, Obama chose to ignore a SCOTUS ruling that struck down federal preapproval for certain states to enact changes to election laws. SCOTUS found that the conditions that originally justified those measures no longer existed and that they imposed burdens. They stressed that the Constitution’s 10th Amendment empowers states, not the federal government, to regulate elections. Obama’s response has been to sue those “racist” states that enacted voter ID laws as a prevention of voter fraud.

The Constitution’s “checks and balances” were designed to prevent any one branch of government 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.

It is time to readjust our thinking and restore SCOTUS to the place and powers it was intended to have in our Constitutional order before it further damages the very Constitution that created it. That means we must elect Congressional representatives that will uphold our Constitution.  We must elect a president, not a party or a cult, that not only understands the Constitution but actually accepts their oath to preserve, protect and defend the Constitution.

Presidents appoint judges who have a similar political ideology to their own. In other words, a president with a liberal ideology will usually appoint liberals to the courts. Likewise, conservative presidents tend to appoint conservatives. And since these appointments are generally for life, they have a major impact on our country. 

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