Thursday, March 17, 2005

The case for judicial review

Conservative pundit Benjamin Shapiro has this to say about the doctrine of judicial review:

Perhaps judicial review wasn't such a great idea after all. In Marbury v. Madison (1803), Supreme Court Chief Justice John Marshall assumed the power of judicial review over acts of the legislature. According to Marshall, the Constitution vested in the Supreme Court the ability to overturn legitimately enacted laws if those laws conflicted with the Constitution itself.

It is anything but clear that the Constitution meant to create the power of judicial review. Marshall's opinion is full of holes, both textual and logical…

Still, judicial review works well in theory. The basic principle is this: Legislative acts of the people may not trump fundamental, universal values as expressed in the Constitution. Alexander Hamilton phrased it this way in Federalist No. 78: "Where the will of the legislature, declared in its statutes, stands in
opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental."

But Hamilton admitted that if the judges were disposed to
substitute their will for the will of the people, if "they should be disposed to exercise will instead of judgment … [that] would prove that there ought to be no judges distinct from that [legislative] body." In other words, if the judges were to become merely a political branch, where a majority of five could trump a majority of the people while falsely claiming allegiance to the Constitution, then that would be an argument for dissolution of the judiciary as a distinct branch of government. Life tenure was supposed to guard against the politicization of the judicial branch.

The Supreme Court has consistently, for the past 50-odd years at the very least, substituted its judgment for the judgment of the people, without regard to the Constitution…

The time has come to do away with judicial review as a whole. The judicial branch has been politicized to such an extent that judges who fulfill Hamilton's qualifications – judges who compare legislation to the actual Constitution – are dubbed
conservative extremists, while judges who legislate from the bench are termed moderates. The system has become so thoroughly corrupt that the only choice left to us is a constitutional amendment ending judicial review of legislative acts.



Shapiro’s argument falls short on several levels. First, it supposes that there is no power vested in the people to remove officers of the judiciary. Second, the implication of Shapiro’s contention assumes that the courts have only recently been transformed into a political vassal. Third, Shapiro’s theory is that democratically enacted laws are somehow sacrosanct and are thus unassailable by the judiciary.

According to Article 2, Section 5 of the Constitution “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Through this provision and Article 1 of the Constitution officers of the judiciary are directly accountable to Congress for abuse of authority and contravening Constitutional protections. The House of Representatives is responsible for the act of impeachment and can do so by a simple majority. The Senate tries the case and can convict by a two-thirds vote. The fact that justices are accountable to Congress and said representatives and senators are directly accountable to the people dictates that through a chain of procedure judicial officers are ultimately accountable to the people. And that chain is impeachment. Admittedly, the impeachment process is cumbersome and time consuming but it is a process nonetheless.

Shapiro’s second failure is that he hypothesizes that the judiciary has only been a political instrument for the last 50 years. This is patently false and the politicization of the courts was the very genesis of Marbury v Madison. In 1800 then President John Adams attempted to pack the judiciary with federalist judges in a preemptive strike against the incoming Thomas Jefferson and his so-called Jeffersonian Republicans. The Jeffersonians threatened the Supreme Court with impeachment if the Court overturned the repeal of the Judicial Act of 1800. A last minute appointee, William Marbury, sued the new Secretary of State, James Madison, for the refusal to recognize the delivery of the commission that would have made Marbury’s appointment official. This opening salvo is illustrative of the fact hat the courts have been a political tool since the infancy of this country. From the abolition of slavery and the women’s suffrage movement to the civil rights struggle of the ‘50’s & ‘60’s, the continuing war over abortion, and the debate over gay rights, the judiciary is and always has been a political tool. To claim otherwise is disingenuous and na├»ve.

The third major flaw in Shapiro’s argument is the supposition that democratically enacted laws are and should be held next to holy. Should the U.S. Congress legitimately enact a law with the full support of the people that made it legal to impale a dog on a pike and line Pennsylvania Avenue with dogs on spikes would Shapiro hold such a law to be sacred. I think not. If duly enacted laws fly in the face of the Constitution then said laws should be struck from the books. If Congress enacted legislation guaranteeing unfettered access to abortions Shapiro and those of his ilk would be up in arms. This is where checks and balances come into place. Congress can limit the courts’ appellate jurisdiction as the courts can smack down laws deemed to be unconstitutional. Ergo the two branches are accountable to each other.

Judicial review is and always has been a valuable, and admittedly, oft abused cannon of the legal process. Even though the courts can, and do, overstep their bounds, it would be folly to in effect throw the baby out with the bath water. A check must be placed on Congress’ power as well as the power of the judiciary.