The Case Against Judicial Review (Guest Author)

Court cases have a way of changing the scene of public debate on political issues. Chief Justice John Roberts famously said about court decisions: “I mean, that sort of quick change (court decision) has been a characteristic of this debate, but if you prevail here, there will be no more debate. I mean, closing a debate can close minds, and – and it will have a consequence on how this new institution is – is accepted. People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by – by the courts.”

For that reason, Marbury v. Madison has been the most influential court case in the history of the United States. It has had a long-lasting numbing effect to our constitutional republic because of how it has shut down public debate on the interpretation of the Constitution. The ruling, from 1803, placed into law the role of the Supreme Court to declare congressional and executive actions unconstitutional and void, a power known as judicial review.

Most of us accept this overarching and broad power as normal or expected, yet it is technically not in the Constitution. It was formalized in Marbury by Chief Justice John Marshall. The broad authority granted by judicial review generates some questions about our Constitutional system. The Supreme Court was supposed to be the weakest branch of government, laid out by Alexander Hamilton in Federalist 78, but judicial review grants them an immense amount of power. This power allows the Supreme Court to nullify whatever the other branches of government do, which seems to circumvent the original power structure set forth in the Constitution.

The argument for the Supreme Court declaring laws unconstitutional is that this power protects the fundamental rights guaranteed by the Constitution. The argument goes that although it is not in the Constitution, judicial review is necessary to protect the government from exceeding the powers granted to them by the Constitution. As someone skeptical of government, I am sympathetic to this argument. The idea of an unchecked government is a scary one. However, members of Congress and the President swear oaths to protect the Constitution. They should act with prudence in accordance with the Constitution. If they don’t, the first answer is not in the Supreme Court, it is at the ballot box. The same cannot be said if the Supreme Court violates the Constitution; there is no Supreme Court election.

Another problem with judicial review is that the Supreme Court is an unaccountable body. Judicial review is an undemocratic extension of an already undemocratic body of government. In theory, the people have power over the Supreme Court because the democratically elected President appoints justices with the approval of the democratically elected Senate. However, due to the long terms brought on by lifetime appointments, justices can serve for decades, often outlasting the men who put them there in the first place. Once on the court, the only way to remove a justice is through impeachment under “bad behavior”. Yet in 230 years of the Constitution, not a single Supreme Court Justice has been removed through impeachment. This lack of accountability means the only people who check to see if the Supreme Court is in complete compliance with the Constitution is the Supreme Court. This circular power check does not hold steady with the idea of separation of powers and checks and balances the drafters of the Constitution sought to establish.

Beyond absolving the legislature of their oaths to the Constitution by putting that question entirely in an unaccountable Supreme Court, a third argument against judicial review is laid out in Thomas Paine’s Rights of Man. In this book, Paine makes the argument that people of a certain era should not pass on laws that would affect the next generation. He writes that: “The Parliament or the people of 1688, or of any other period, had no more right to dispose of the people of the present day, or to bind or to control them in any shape whatever, than the parliament or the people of the present day have to dispose of, bind, or control those who are to live a hundred or a thousand years hence.” Therefore, Paine would argue that the people would vote on representatives who agreed with their interpretation of the Constitution. This would completely eliminate the necessity of the Supreme Court to oversee federal actions and declare them unconstitutional because the constitutionality would be determined by the people of that era.

Paine’s notion would promote a Constitution that will be fluid and change meaning based on the people’s evolving conceptions of law and government. However, Paine counters that argument by writing: “The circumstances of the world are continually changing, and the opinions of men change also; and as government is for the living, and not for the dead, it is the living only that has any right in it.” By taking the role of declaring laws unconstitutional from the legislative branch and giving it to the judicial, judicial review creates a system that is hostile and coercive to its future citizens. It enshrines old dogmas and forces them onto future generations. Therefore, it is vital to allow the people who interpret the laws to be elected by popular sovereignty; this would ensure that laws could not be deemed unconstitutional by an unelected branch of government or by judicial rulings centuries old. From this perspective, the only responsible conclusion is to abandon the Supreme Court’s power to declare laws unconstitutional to the original constitutional approach and returning the power to the elected legislative.

This article was submitted by a guest author and the views expressed do not necessarily reflect Dallas’s or any other author on this website.

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