An Evaluation of Judicial Review
Judicial review is a doctrine which is fundamental to the constitutional republic of the
In Article III, Section 2 of the Constitution, the judicial power is said to "extend to all cases, in law and equity, arising under this Constitution, the laws of the
In 1801, William Marbury asked the Supreme Court to issue a writ of mandamus to James Madison, then Secretary of State, because
It may be argued that the legislative branch is just as capable of interpreting and following the Constitution as the judicial branch, and I agree to a point. However, I believe it is wise to contemplate the misuse of federal power by Congress which they themselves would be unwilling to counter. In other words, if Congress wants to go beyond the Constitution they would not likely invalidate their own action. As
Though the principle of judicial review is reasonable and necessary, it has been misused. By creatively interpreting the Constitution so as to substitute their own will for the original intent of the founders, the Supreme Court has recently done much damage to our republic. Of course, the most infamous of such cases is Roe vs. Wade, wherein the justices created the "right to privacy" and applied it in such a way as to render murderers of children immune from prosecution. Obviously, judicial review has its downsides. It is unfortunate that the founders didnt seem to anticipate the rampancy of legislation from the bench which we see today, and provide better methods of stemming this tide.
In the most recent years, the Supreme Court has become so audacious as to consider itself the one and only interpreter of the Constitution. By striking down the Religious Freedom Restoration Act in the 1997 case of Boerne vs.
Perhaps most telling is this passage which seems to me to be at the heart of the Boerne decision: "The design of [Fourteenth] Amendment and the text of [section] 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause." What the justices seem to be saying is that they alone decide what the clause means, and if you attempt in any way to change that, too bad. What they don't seem to consider is that the "alteration" which the Congress attempted to make was not in conflict with the text of the Constitution at all but rather enlarged our freedom of religion by limiting government. Essentially, they made their own narrow interpretation of the right to religious freedom the arbitrary standard which Congress could neither go above or below in their acts. And even though a few justices did dissent in the Boerne case, none questioned the conclusion of the majority that the Supreme Court alone can decide what the Constitution means.
Though judicial review is a good concept, and an independent judiciary with this power is essential for liberty, it is clear that the potential for misuse of this power cannot be ignored. We must come up with a solution to the problem of judges overstepping their bounds. If we do not, our freedom will continue to be endangered by the real potential tyranny of five black robes.