Constitutional originalist's opinion of judicial review

[asahi]

@Fotheringay-Phipps

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.

The problem with that is that constitutional amendments take forever. If ever there is a crisis that compels an overwhelming majority of the adult public to demand restoration of some of the balance between public and private power, but a court loaded with originalist jurists declares that a progressive legislature and executive are depriving wealthy individuals and corporations of their right to exploit other individuals in the name of free enterprise, then that inevitably weakens the Constitution, because originalism is out of step with how people today view democracy. Courts can certainly reject that idea and declare laws in the name of the public interest invalid. But a populace that is aggrieved enough and angry enough can declare their own courts and constitutions invalid.

[UltraVires]

@Spoons

This is what puzzles me, and perhaps the American legal Dopers can put some perspective on it.

The United States is a common-law country–that means a court uses case precedents from the past to decide what is before it today.

But from what I see, from Trump supporters especially, is the belief that by stacking the SCOTUS with “conservative constitutional originalists,” they can ignore (and perhaps erase) 200+ years of SCOTUS common law, and make decisions based on “what the Framers intended.” Or perhaps, “what we believe the Framers intended.” Either way, I’m familiar with Scalia’s “Four Corners” doctrine. No thought is given to the Constitution as a “living tree,” which it must necessarily be, as time goes by.

In the end, it seems to me that “conservative constitutional originalists” really want a European-style civil code, where precedent plays no role. Further, they expect Supreme Court judges to outvote their fellow judges based on personal politics instead of precedent. We don’t find this “politics trump precedent” in other common-law countries.

I don’t get it. How can the legal system of a common-law country ignore centuries of precedent?

A couple of points. Really only Clarence Thomas wants to toss out centuries of precedent. Scalia acceded to things that he did not believe in as an original matter, but because of precedent (e.g. substantive due process, application of bill of rights to the states, the expansion of the commerce clause). So most conservatives do respect long standing precedent.

However, precedent is not all it is cracked up to be. Should Plessy have been upheld in Brown? It was law for 57 years prior and many southern states had built expectations on that ruling. Or should a court do like most people do?

I’m sure we’ve both made mistakes in our lives. Should we learn from mistakes and change our behavior or have that arrogant attitude that judges seem to have and say that we must be consistent so that we will be respected and not only repeat our mistakes but continue them?

[md2000]

@JRDelirious

“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.

Thanks. I think that pretty much sums up the supremacy of the constitution.

Still, was that accepted practice in the 1780’s? Is that what intellectual folks thought a constitution meant?

I assume for most of the western world the concept of a constitution has evolved from how the USA treated their constitution?

[Little_Nemo]

@Tom_Tildrum

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.

I didn’t say it was a perfect system. I said it was a better system than one without any means of judicial review.

[Fotheringay-Phipps]

@asahi

The problem with that is that constitutional amendments take forever.

That may be so but that’s a much smaller claim than your earlier claim, which implied that originalism meant that the constitution was frozen in time.

Further, I imagine that if the only way to respond to societal change was to amend the constitution, then the political system would probably move faster on amendments as well.

[Really_Not_All_That_Bright]

@kaylasdad99

I’m curious about one thing. Several state constitutions have been adopted since Marbury v. Madison. Do any of them explicitly enshrine the doctrine of judicial review as it pertains to the constitutionality of laws passed within that state?

Yes. For example, Art. V, §III of the Florida Constitution specifically vests the state supreme court with the authority to review lower court decisions passing on the constitutionality of state statutes. When a lower court has found a statute unconstitutional, the FSC must review that decision; when a lower court has found a statute constitutional, the FSC may review it.

(b) JURISDICTION.–The supreme court:

(1) Shall hear appeals from final judgments of trial courts imposing the death penalty and from decisions of district courts of appeal declaring invalid a state statute or a provision of the state constitution.

<snip>

(3) May review any decision of a district court of appeal that expressly declares valid a state statute, or that expressly construes a provision of the state or federal constitution, or that expressly affects a class of constitutional or state officers, or that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law.