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May 23rd, 2010

Dispelling Five Myths About Judicial Review

Written by Nathan Tucker

In the ongoing debate over the response to the Iowa Supreme Court’s decision to strike down the state’s Defense of Marriage Act, there are several persistent myths over the doctrine of judicial review that have cropped up and found a voice in Iowa.  Proponents of these myths hope to be able to reign in judicial activism by removing the power of courts to “make law.”

The first and most prominent among these myths is the claim that the power of judicial review can be found no where in the text of the Constitution. All the Constitution provides is that “[t]he judicial Power of the United States, shall be vested in one Supreme Court..”

But long before Chief Justice John Marshall famously expounded on the subject in Marbury v. Madison (1803), those who wrote and ratified the Constitution understood the term “judicial power” in the text to encompass the power of judicial review.  At the Constitutional Convention, Luther Martin stated that “as to the Constitutionality of laws, that point will come before the Judges in their proper official character.  In this character they have a negative on the laws.”

George Mason also noted that “in their expository capacity as Judges…[t]hey could declare an unconstitutional law void.”  James Madison stated that a “law violating a constitution established by the people themselves, would be considered by the Judges as null & void.”

Patrick Henry argued during the Virginia ratifying convention that “I take it as the highest encomium of this country, that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary.”

Thomas Jefferson, in a letter to James Madison in which he argued for a Bill of Rights, declared:  “In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary.”  (It wasn’t until the Supreme Court began to disagree with him, nearly fifteen years after the Constitution was ratified, that Jefferson’s opinion of judicial review began to change.)

These are just a few of the statements made by our Founders that show that they clearly understood that the term “judicial power” encompassed the power of judicial review.  It is also important to note that, though several did express dissatisfaction with the power of judicial review, no one during the Constitutional Convention or the ratifying debates claimed that the judiciary did not possess such a power.

The second myth is that, even if the courts have the power to declare a law unconstitutional, they cannot enforce their decision but only state their opinion. But James Madison stated at the Constitutional Convention that laws would be “set aside by the National Tribunals.” (emphasis added)  Gouveneur Morris also used this active term when he expressed the belief that a “law which ought to be negatived will be set aside in the Judiciary department.”

In addition, at the Maryland ratifying convention, Luther Martin stated that:  “Whether, therefore, any laws or regulations of the Congress, any acts of its President or other officers, are contrary to, or not warranted by, the Constitution, rests only with the judges, who are appointed by Congress, to determine; by whose determinations every state must be bound.”  (emphasis added)

Brutus, writing in The Anti-Federalist Papers #78-79, feared that the Supreme Court would, because of the doctrine of judicial review, be “superior to that of the legislature.”  In fact, he specifically contrasted this American understanding of judicial review with that in England in which Parliament can set aside or correct, via legislation, the opinions of their courts.

The power to set aside an unconstitutional law, or parts thereof, is essential to the power of judicial review, for without it they are but a resounding gong.  If courts are unable to enforce their determination that a law is unconstitutional, than they cannot serve as the “legal check” Jefferson had in mind, or as the “guardian of those [bill of] rights” Madison talked about in the 1st session of Congress.

There is not a single quote among any of the Founding Generation that supports the proposition that, once a court rules a law is unconstitutional, the law remains the law until the legislature opts to change it.  Before Marbury, American courts had declared several laws unconstitutional, both before and after the Constitution, and no one questioned the legal force of those decisions.

Also, there is not a single example of a “chief magistrate”—whether Jefferson, Jackson, or Lincoln—who issued an executive “stay” or even contemplated one.  (The Emancipation Proclamation was a military order intended to deprive the South of the slave labor that worked the farms, freeing their owners to serve in the Confederate Army.   It only had effect in enemy territory, and Lincoln never imagined he had the authority to issue it nationwide as a “stay” on the Court’s Dred Scott (1857) decision.)

The third myth is that judicial review equals judicial law making. A judicial veto of an unconstitutional piece of legislation is not the same as the power to order the legislature and executive branches to enact legislation.  Just as no one claims that a President is “making law” by exercising his constitutionally-delegated veto power, the same holds true for a judicial veto.  Removing unconstitutional portions of a law from the books is not the same as adding law to the code.

The fourth myth is that judicial review would make the judiciary supreme to the other branches of government. In Federalist #78, Alexander Hamilton rejected this proposition in the following passage:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.  It only supposes that the power of the people is superior to both, and that 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 later rather than the former.

In other words, the judiciary is not supreme over the other two branches, but the Constitution is supreme over all three.  Simply because the judiciary is the last to have a chance to declare a law unconstitutional doesn’t mean it is supreme.  The legislature can always elect not to pass a law because they believe it is unconstitutional, or the executive can always veto a piece of legislation because he believes it is unconstitutional.  All three co-equal branches of government have to concur before a law passes constitutional muster.

The fifth and final myth of judicial review is that, if it weren’t for the courts, we wouldn’t have a liberal agenda pushed down our throats. Thanks to the courts, as the theory goes, we have abortion, homosexual marriage, flag burning, birthright citizenship for illegals, unfettered access to pornography, the removal of prayer from the public schools, etc. 

There are three problems with this myth.  The first is—so what?  Just because we don’t like the result doesn’t mean the courts do not have the power.  In fact, stressing this point only makes it appear that this position is taken not on constitutional principle but on disgust with liberal judges.

The second is that the other branches, at both the local, state, and federal levels, deserve much of the blame for the liberal agenda in our country—the indoctrination of liberalism in our public education, ObamaCare, environmental regulations, strict gun laws, taking of private property through eminent domain and economic regulation, etc.

The third problem is that the courts have occasionally gotten the law right, including such cases as Citizens United v. FEC (2010) (campaign finance), Brown v. Board of Education (1954) (desegregation), U.S. v. Lopez (1995) (federalism), Good News Club v. Milford Central (2001) (equal access to school property for religious clubs), and D.C. v. Heller (2008) (gun rights).  One cannot argue that the cases the court got wrong are not binding but the ones it got right are.  Either both are binding, or both are not.

In conclusion, there is nothing unconstitutional about the power of judicial review.  There are legitimate remedies to the abuses of that power, but trying to discredit its existence is not one of them.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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