But that is essentially the same as saying the constitution is a guideline, and any panicked legislative action that violates it is OK. Sort of like the British system of parliamentary supremacy, but without the limiting sensibility of historic common law. Presumably if the legislature’s action is beyond the reach of the courts, why not the executive too? If a law cannot be overridden by the constitution, would not the same apply to executive orders?
And ultimately, if the other branches cannot be compelled by the courts where does it stop? Who decides, for example, if the senate refuses to admit senators from certain states by a majority vote? Who decides what happens if the president decides to arrest congress-critters on their way to or during a session and the majority in congress concurs? Or votes to delay the next election for a few years?
If there are two laws passed by Congress that conflict with each other, the Courts decide how to resolve that issue. Does anybody disagree on that?
And if a law passed by Congress conflicts with the Constitution (which is the supreme law that the country was founded on), the Court decides how to resolve that issue as well. Seems straightforward to me.
Is the issue that in the former case, the Courts tend to allow the newer law to override the previous law, whereas in the latter, clearly the Constitution trumps the newer law? How can an originalist or any other constitutionalist object to that?
If a simple law of congress could override the constitution by it’s newness, why would the constitution have the 3/4 provision required to change it? Why would the constitution even require amending if every law overrode it?
As opposed to a system where any half-assed federal court decision that purports to interpret the constitution is the law of the land. There are no guarantees of quality, sober reflection, or non-political motivation under any system. It’s just that ultimately someone has to speak last.
And there generally isn’t any sense in which a violation of the constitution exists in some objective reality outside of the system of interpretation. Under a system of legislative supremacy, a duly-constituted legislative action simply cannot be a violation of the Constitution, for the sole reason that the party charged with deciding whether there is a violation says that there is not. This is no different from the current system – regardless of whether you or I think they have it right, a law upheld by the Court cannot be considered a constitutional violation, for the sole reason that the party charged with deciding whether there is a violation says that there is not.
No, judicial review does not guarantee well-considered or apolitical decisions :rolleyes: but it does tend to guarantee disinterested decisions. The difference between Congressional supremacy and judicial review is that the latter doesn’t “entrust” Congress to be the judge of the constitutionality of its own laws. Ditto the President and his executive decisions.
One of the basic rules of justice going back at least centuries is that no man should be the judge of his own case. To some extent, that’s what the rule of law IS, that every person doesn’t simply decide for himself by his own conscience what he can do to other people. In that light, the oft-complained “bug” that unelected judges decide constitutionality is actually a feature. :smack:
By the way, I used Congressional supremacy rather than legislative supremacy for a reason. If the courts couldn’t strike down a Federal law because judicial review of Congressional statutes didn’t exist, but State laws are explicitly inferior to the Constitution and Federal laws (U.S. Const. Art. VI, Sec. 2), then Congress would be free to pass laws blatantly contrary to its limitations or the States’ reserved powers and the States could do nothing lawfully about it.
You may respond that the State legislatures could elect a new Senate (pre-17th Amendment) and the voters elect a new House. Yes, if a constitutionally-unchecked Congress allowed it: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” (Art. I, Sec. 5)
You may not like “half-assed” unelected judges deciding the constitutionality of laws, but I assure you that if you cut down judicial review, you would – eventually, not immediately – not like the results.
If the Supreme Court didn’t have the power of judicial review, then who would have it? Congress? The President? Those ideas would work but none of them exist in the Constitution either. Giving the power of judicial review to somebody else would be just as much (or just as little) a violation of the text of the Constitution as giving it to the Supreme Court is.
Or is the OP suggesting we don’t have any judicial review? If we didn’t, the Constitution would be meaningless. It might say that Americans have a right to follow any religion, for example, but there would be no means to enforce it. Congress could pass a law or the President could issue an executive order making Roman Catholicism illegal. Everyone might unofficially agree that this was illegal but nobody would have the authority to officially overturn it. So the government could shut down newspapers, confiscate guns, lock people up in prison for no reason, reinstitute slavery, and cancel all elections and the only possible response would be to overthrow the government. We’re a lot better off by having a body that has the power to non-violently check the government when it acts illegally.
And note that there is a remedy for egregious abuse of judicial review. Judges can be impeached. Of course, this impeachment power could itself be abused.
The only remedy for authoritarian government is a citizenry that will not tolerate authoritarian government. No formal rules can protect a country from a citizenry that allows tyranny to go unchecked.
Like all the threads where someone worries “What happens if the president doesn’t leave after losing the election?”, the answer is that nobody will agree to act as if the former president is still president. Just because he’s barricaded himself in the Oval Office and is sending out orders on fancy telephone it doesn’t make him still president. He’s only still president if, when he calls up the generals on his fancy telephone and issues them orders the generals obey those orders, and when the generals relay those orders the soldiers obey those orders.
I take it you did read the OP - I am not suggesting any such thing. I am asking if there is a branch of legal thought that believes Marbury v. Madison is claiming a power for the SC that is not expressly granted to the SC in the Constitution.
I would take issue with what may be part of your underling premise here.
ISTM that even extreme legal scholars who are enough in the mainstream to be worth talking about, let alone “potential SCOTUS nominees” are not particularly likely to oppose something like judicial review. That concept is too long-accepted and too enshrined in the nation’s political system to oppose, to the point that opposition to that concept would be a serious bar to the acceptance of those extreme views, which would not serve the holders of such views at all.
What you could conceivably have is an extreme legal view that should logically produce opposition to something like judicial review. What you would have in such cases is all sorts of tortured reasoning in order to maintain some sort of intellectual consistency while continuing to accept the inviolate concept. But you would never have actual opposition.
True, you do not want Congress to consider itself intrinsecally sovereign.
Also, a duly enacted legislative action is presumed constitutional, unless and until succesfully challenged by someone(s) with “standing” to come before the courts on that matter.
Even at their most activist the courts do not go around eagerly looking for laws to strike down motu proprio at a whim. From bottom to top every day they throw out constitutional challenges on the grounds that the persons that brought the case lack standing; or they find some defect in form, or procedural nitpick, to latch on to rule on the particular case but in the words of many commenters, “punt” on addressing whatever’s the Big Constitutional Question.
And technically I didn’t suggest that you had suggested it.
Rereading your OP, I feel it was a valid question. Your OP presents to possibility that judicial review was something that Marshall invented rather than something that existed in the Constitution. That means there is a possibility that Marshall’s interpretation is wrong and that judicial review doesn’t exist.
You raised this possibility without commenting whether you agreed or disagreed with it. So I felt it was fair to ask you.
As JB points out, you get a more independent and more thoughtful decision from a judge. Any idiot can get elected, pandering to the masses. The lack of intellect of some elected members of the legislative and executive branch is astounding. Now look at the make-up of the SCOTUS. Those who didn’t go to Yale, went to Harvard, and performed well. The one thing all have in common, despite what we may think of their alleged political viewpoint, is that they are all smart. (Consider Harriet Meyers and her fate as the counter-example). Not suggesting only Harvard or Yale are smart, but the requirements to get in there and perform well certainly have a filter effect that demonstrates ability.
So “half-assed” is far more likely to apply to the legislative and executive branches, and those states where judges are elected (cough - Roy Moore - cough)
No, the point would not be that the constitution is meaningless. It would be that the constitution is simply a law like any other to be overridden by anything subsequently enacted. (Whereas a separate restrictive amending formula would suggest that it was meant to be overriding not overridden)
Consider the problems we have in your country already - civil forfeiture, patriot act gag warrants and stifling any trials with claims of “national security”, indefinite detention in Guantanamo, warrantless searches within 100 miles of any port of entry or border, NSA wiretaps of civilians, routine no-knock warrants, persecution of journalists under both Obama and Trump… And these are just the actions sanctioned by the courts despite the constitution. Imagine what a hysterical legislature could do without constitutional restraint.
Don’t lose sight of the fact that Sir Thomas More lived under a system of legislative supremacy, without judicial review.
Remember that the second instance of the Court exercising its power of judicial review to strike down an act of Congress was Dred Scott. The Court found that Congress acted illegally by prohibiting slavery in the Missouri territory. That decision (and the inability of anyone to overturn it) may have hastened the Civil War. Certainly, judicial review didn’t prevent the war. After the Civil War, the Court used judicial review to strip the Privileges and Immunities Clause of the Fourteenth Amendment of all meaning., in the Slaughterhouse Cases.
Even with judicial review available, a later Court upheld the internment of American citizens based on their ethnicity, in Korematsu. The Court’s power to review the constitutionality of state laws, which nobody contests, led it for some time to strike down wage-and hour regulation as unconstitutional, while upholding racial segregation. In the present day, plenty of people would say that the Court got it wrong in checking Congress’ attempt to regulate corporate campaign expenditures, and plenty of other people would say that the Court erred in striking down state restrictions on abortion. There is no easy recourse for either group.
Again, I don’t think Marshall got it wrong, or that the power of judicial review should be curtailed. (And I certainly agree that no one on the Supreme Court list thinks so either). I’m just saying that I think it’s harder than people here are suggesting to be confident that there’s a structural reason to expect consistently better results from one system or another. A healthy underlying polity can work well under either approach, while a society heading for civil war won’t be saved by either one.
Well, but now we are going into a different tack – many of the Court’s own members have stated in opinions and dissents that the Court is to review whether the law is at odds with the Constitution (as they interpret it) and/or the lower courts did not incur in error in their judgement, not whether the law itself is wise/dumb or good/evil.
All originalist roads lead to this, I would think. A court packed with originalists gets much less involved in striking down laws they deem inconsistent with the Constitution and do more of what’s explicitly spelled out.
Smart or not, the Court’s problem is that it is being remade in the image of our dysfunctional democracy. It is increasingly ideological and polarized - I don’t know what can be done about that, but my point in mentioning this is that intelligence is irrelevant if said intellect is being used to reflect worldview, which increasingly appears to be what our highest court is doing. And this is one of those rare times when I will say that both sides do it, even though I happen to agree that progressives are on the ‘right’ side.
The problem with originalism is that a ‘living, breathing’ Constitution is the only way that it will continue to survive. The Constitution cannot be enforced by the standards of democracy that existed back in 1791 or even 1891 for that matter. Think of the changes that have occurred since: women and minorities can vote. They can - at least in theory - advance socioeconomically and become leaders in business and in the community. That is the world of today, not the world of originalism as people like Robert Bork would have had it. Ordinary people can vote, and they don’t have to own property or pay poll taxes to do it, either. Courts have said that the federal government can levy income taxes to pay for public welfare programs. Nativists and plutocrats notwithstanding, most of us today accept that this is what our view of democracy has evolved to become. The only way for people to continue having confidence in the constitution of 1791 is to have the three branches of government reinforce modern democracy. Originalism takes us back to a dark place, and I seriously doubt people in the collective would tolerate quietly it for long.
Exactly.
The Constitution, for all of its flaws, still exists because it laid out a clear and relatively successful blueprint for how government can function with stability. But that also depends on good faith exercised by all parties involved and we have to be careful that social and political polarization don’t destabilize our society to the point where one side (or both) are motivated to weaponize the law against the other. Without a healthy respect for Constitutional principles like separation of powers, due process, and other individual liberties, we lose checks and balances. Over time, the rule of law is replaced by the rule of men.
The other alternative is to enact changes via amendments to the constitution, rather than judges simply deciding that things have changed. This would be completely consistent with the strictest originalism, but yet leave room for societal advancement and development.
IIRC the constitution does not say “this is the supreme law of the land”. Yet, despite parliamentary tradition going back centuries that parliament was supreme (a parliament could not bind future parliaments) the founding fathers wrote a constitution, and made it difficult to amend without broad consensus. So what did the founding fathers think a constitution actually was? They obviously had heard of them, since they found it important to write one. Was there already at the time a tradition that the constitution of an organization was the overriding law? The fact that it (and any amendments) had to be ratified by the states that joined suggested it would be akin to a treaty amongst the states and therefore, presumably, subject to the Supreme court. Plus, a disagreement over the meaning of the constitution, being a treaty between states, meant that states had a stake in the precise meaning of it and therefore also follows would be jurisdiction of the Supreme Court.
“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made or that shall be made under the Authority if the United States, shall be the supreme Law of the Land” - Article VI, second clause.
