COBB: The Case Against Judicial Review

November 15, 2009
David Cobb


"Judicial Review" is not a term familiar to most Americans, but it should be. The concept is a profoundly important operational underpinning of the United States legal system. Anyone working to make this country a more peaceful, just, ecologically sustainable, and democratic place should be eager to examine this basic doctrine.

In a nutshell, judicial review is the power of a court to review the actions of executive or legislative bodies to determine whether the action is consistent with a statute, a treaty or the U.S. Constitution. In its most basic expression, it is the authority of the unelected Supreme Court to declare acts of elected members of Congress or the elected President unconstitutional. (Of course, the current occupant of the White House was never elected, but rather installed in what can only be described as a judicial coup d'etat).

It is important to recognize that there is absolutely no explicit reference to the concept of judicial review in the Constitution itself. Proponents of judicial review merely infer that power from Article III of the Constitution which states: "The judicial Power of the United States, shall be vested in one Supreme Court... and shall extend to all Cases... arising under this Constitution..."

The inference that this flimsy language somehow grants our Supreme Court the power to define the parameters of the Constitution seems tenuous at best and may come close to contradicting the specific language of that document. Specifically, the Tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people." Additionally, why is it that if the Court has the legitimate authority to declare acts of Congress unconstitutional, that power was used so sparingly in the early decades of the country's history?

Judicial review is an undemocratic extension of the undemocratic nature of the Constitution itself, a document protecting the rights of property over the rights of people. Given that the Constitution was drafted by a small number of people who met behind closed doors, the fact that a small number of unelected judges overrule citizen initiatives or laws passed by legislative bodies is not very surprising.

Warnings of Jefferson and Lincoln

The Court first exercised the power of judicial review in the 1803 case of Marbury vs. Madison. The decision caused an uproar, leading Thomas Jefferson to express his deep reservations about the principle. He wrote: "To consider judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and for privilege. But their power [is] the more dangerous, as they are in office for life, and not responsible to elective control." Jefferson cautioned that judicial review would make the Constitution nothing but "a mere thing of wax in the hands of the Judiciary, which they may twist and shape into any form they please."

It was not until 1856, in the repugnant case of Dred Scott vs. Sanford, that the Court invalidated a second federal law. In this instance, it was a provision of the Missouri Compromise that prohibited slavery from expanding into federal territories. In overturning this provision the Court proclaimed that people of African descent could never be citizens of this country under any circumstance, whether slaves or not. The Court specifically held that all persons of African descent were "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect." As reprehensible as the Court's decision was, it was merely an affirmation of the tenor of Article IV, Section 2 of the original Constitution which held that escaped slaves were not free people but had to be returned to their masters and, hence, were property.

This case caused Abraham Lincoln to speak out against judicial review during his first inaugural address. He said: "The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

I recognize that many people, including friends and allies with whom I often agree, have a positive view of the United States Supreme Court. Notwithstanding the odious decision of Dred Scott, they point to the 1954 case of Brown vs. Board of Education and the subsequent civil rights cases as examples of the Court doing justice by overturning Jim Crow segregation laws.

But it is important to remember that the Brown decision actually overturned the prior Supreme Court decision of Plessy vs. Ferguson, which held the odious doctrine of "Separate but Equal" to be constitutionally acceptable. And the current Supreme Court used judicial review earlier this year in Parents Involved in Community Schools vs. Seattle School District to overturn school desegregation plans in Seattle and Louisville, basically gutting the venerable Browndecision.

Stated simply, civil rights victories were not won by eloquent lawyers making refined legal arguments in the courts. They required the sustained education, agitation and perspiration of committed citizens willing to engage in protracted struggles against ruling elites.

I appreciate that many people are understandably nervous about what might happen to constitutional protections in the chaotic worlds of practical politics and everyday life. But it is up to all of us, "We the People," to take responsibility for protecting our liberties. Guarding them is not, nor should it be, the exclusive preserve of judges.

Protecting Our Own Rights and Liberties

The Constitution belongs to us collectively as we act in political dialogue with one another – whether in an official or activist capacity or in the course of our day-to-day activity. A strong case can be made that an engaged and active citizenry will be more effective at protecting our civil liberties than the courts. This was certainly true in the "humanization" of the Constitution throughout our history. Social movements have brought about the addition of amendments to that document, including the first ten, the Bill of Rights, establishing protections absent in the original document.

The lack of citizen initiative was evident during the very real and serious threats to people's liberties during the "communist scare" of the 1950s. When Senator Joseph McCarthy persecuted political dissidents many honorable Americans were lulled into inaction, believing that the judicial branch would step in and declare McCarthy's actions unconstitutional.

In the course of the Lochner Era (roughly 1900 –1937) the Supreme Court used judicial review to strike down 170 state and federal labor laws attempting to make working conditions more fair and just. During this time the Supreme Court declared unconstitutional laws limiting the number of hours bakers could work (Lochner vs. New York, 1905), outlawing child labor in factories employing children under 14 (Hammer vs. Dagenhart, 1918), and mandating a minimum wage (Adkins vs. Children's Hospital, 1923).

In Freedom's Law: The Moral Reading of the American Constitution (1976), legal scholar Ronald Dworkin spells it out: "...On controversial and profound questions of political morality that philosophers, statesmen, and citizens have debated for many centuries, the people and their representatives simply have to accept the deliverances of a majority of the justices, whose insight into these great issues is not spectacularly special." And this from an acknowledged defender of judicial review!

But let's move beyond support or opposition to judicial review based on whether we support or oppose the outcome of particular decisions. The sobering reality is that judicial review is politically illegitimate. The fundamental premise of this government is that all legitimate political power resides with the people. By allowing a ridiculously small number of unelected, unaccountable, appointed-for-life judges to dictate what is constitutionally acceptable or unacceptable is to disenfranchise ordinary citizens and to utterly ignore the principles of self-governance and political equality.

We have come to treat the Constitution as something beyond our competence, something whose meaning should be decided by judges, assisted by a cadre of trained lawyers and academics. This servility to a lawyerly elite is a troublesome and dangerous departure from the proud heritage of freedom-loving revolutionaries. America's founding generation celebrated the central role of "the people" in supplying government with its energy and direction.

Indeed, we must never forget that there was and is a violence associated with the founding of this country – violence perpetrated against indigenous peoples of the continent, against human beings brought in chains as slaves, against women. But these offenses were not addressed by a group of judges issuing rulings. On the contrary, judicial opinions usually justified and legalized the injustice.

The most noble sentiment underlying the American Revolution is the belief that we are capable of governing ourselves – that we do not need Kings, Masters or Judges to decide our fate. According to Larry Kramer, author of The People Themselves, American revolutionaries considered the notion of "Popular Sovereignty" more than an empty abstraction, more than a mythic philosophical justification for government. The idea of "the people" was more than a flip rhetorical gesture to be used on the campaign trail. Ordinary Americans once exercised active control over their Constitution.

The constitutionality of governmental action was met with vigorous public debate and contention, the outcome of which might be greeted with celebratory feasts and bonfires or belligerent resistance. The Constitution remained, fundamentally, an act of popular will – the people's charter, made by the people. Ordinary people were responsible for seeing that it was properly interpreted and implemented. People of earlier generations took that responsibility seriously.

So the question for us is whether "We the People" today are willing and able to do the same?

After all, properly understood, "We the People" are the government. So let's be the government.

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David Cobb is a Liberty Tree Fellow and a member of the POCLAD Board.