An Evaluation of Judicial Review

Judicial review is a doctrine which is fundamental to the constitutional republic of the United States of America. Established by the framers of our Constitution and affirmed initially by the Supreme Court in 1803, judicial review is an essential check upon the powers of the Federal Government. The doctrine is based on the superiority of the Constitution to ordinary legislation, a truth valuable to freedom. But unfortunately, the principle has been misused by justices who consider their own judgment better than the judgment of the Constitution's framers. The misuse has reached to the point that the justices of the Supreme Court now consider themselves not only the ultimate interpreters of the Constitution but the only true interpreters of the Constitution.

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 United States" Though not explicitly stated, the idea that judges have a responsibility to uphold the Constitution over and above any law is implicit. Clearly, it was the intent of the founders to ensure that the Constitution was superior to other laws. And after studying the speeches made in the ratification debates, it is evident that the founders assumed that the Supreme Court would have the power to declare laws unconstitutional.

In 1801, William Marbury asked the Supreme Court to issue a writ of mandamus to James Madison, then Secretary of State, because Madison had yet to deliver Marburys commission to serve as a justice, an office to which he was legally entitled. In the request, Marbury relied upon an act by Congress which established the judicial courts which authorized the Supreme Court "to issue writs of mandamus" to any "persons holding office, under the authority of the United States." In his decision, Chief Justice Marshall argued that the Constitution did not authorize the Supreme Court to take such cases directly. This conflict between the law and the Constitution was the first of its kind and provided Marshall with an opportunity to explain the doctrine of judicial review.

Marshall argued that "those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void." I find this argument quite compelling. Hamilton, in his defense of the Constitution, also gives the reason for judicial review succinctly: "whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former."

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 Hamilton put it "there is no liberty if the power of judging be not separated from the legislative and executive powers."

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. Flores, the Court took the philosophy of judicial review way too far. In this case, they declared an act of Congress unconstitutional simply because it expanded the freedom of Americas citizens beyond the point which the Court had previously set.

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.