Strict Constitutional Constructionists and Judicial Review

I know we have some folks who believe in strict constructionism, like Bricker - hi, Bricker! I was wondering what those people thought of the Supreme Court’s power of judicial review which, as I understand it, isn’t based on explicit Constitutional language.

I have a friend who hates the Supreme Court and all its works, and everytime I begin to discuss a case with him - whether its something we both agree on the outcome or not - it devolves into ‘Judicial Review sucks, Supreme Court has no authority, etc.’

How does one address those claims?

As a footnote, I’m aware of Marbury v. Madison, and have actually looked at it at one point in time, but it’s apparently not good enough for this friend of mine…

I might agree with your friend in theory.

But we have a country that has run for over 200 years now with the principle of judicial review intact. It would be far too disruptive to change that process now.

That does not mean we should continue to do violence to the principle of strict construction today. But it does mean that we should probably let 200 year old decisions, and the massive case law and practice that they have spawned, remain intact.

I have to agree that although the principle of judicial review is not granted to the courts by the constitution, they’ve been doing it so long that changing it would cause more problems than it would solve.

However, I have thought we should make those powers explicit by amending the constuttion, but also defining the extent of what those powers are. I’m not exactly sure how such an amendment would be worded (any thoguhts, Bricker?), but it should disallow the court from conpletely ignoring the wording of the consitution by making certain restrictions completely meaningless. For example, “interstate commerce” apparently now means “any human activity” that the court thinks should be regulated-- ie, it has no restrictive value and might as well not evern be in the constution any more.

Well, let me put forth the chain of ideas I mentioned to him, the last time it came up.

The founders made the Constitution amendable. (This, he protested as a “bad idea” if memory serves.) They made it very difficult to amend. (I submit this was likely out of a desire to avoid a “shifting platform” as well as to prevent ‘tyranny of the majority’) It is comparatively easy for Congress to pass a law.

Now, absent the power of Judicial Review, what separates a law from an amendment? Amendments are harder to enact or repeal. But without judicial review, they offer no authoritative advantage. So it would seem Congress would go about passing laws rather than amendments, and if a law potentially conflicts with an amendment, we have no arbiters to decide whether it does or not.

So Congress could pass a flag-burning law with 51% majority in both houses and the President.

So, my points are these:

1.) Judicial Review serves an important function in checking the Executive and Legislative branches, and I think, a good one.

2.) The founders must have had some process like this in mind, else the amendment procedures for the Constitution seem entirely useless.

Am I way off base?

Marbury v Madison was decided in 1803. The vast majority of the Founding Fathers/Framers of the Constitution were still alive and active in politics. James Madison was one of the parties to the case and one of the most influential of the framers. Had these worthy gentlemen been offended at the actions of the court which “created” the power of judicial review then they were certainly capable of saying so at the time and perhaps even doing something about it. Some of them, or their children/close associates, were leaders of the 8th Congress, the sitting legislators at the time. Others, such as the outgoing president(John Adams) still wielded more than enough influence to raise a stink about it if judicial review had been something they had never intended for courts to have.

Judicial review was not a new concept brought out of whole cloth by John Marshall in 1803. It has a long history in British common law, the majority of which was adopted by the fledgling USA. Wikipedia has a good article on the topic


I’m not convinced by the argument that the Framers were still around – reading Marbury, you realize that Marshall was such a great politician that he painted Jefferson and Madison into a corner. He established judicial review in the same case where he gave the politicals exactly what they wanted, making it politically difficult to attack judicial review even if they didn’t like it.

I do think that judicial review is in the Constitution, as it was an established dooctrine of the British common law which is enshrined in Art III’s mere creation of courts.


Just curious. In your book, does “do(ing) violence to the principle of strict construction(ism)” mean publicly disagreeing with it? If not, what do you mean?

It wouldn’t be enforceable since Texas v. Johnson.

Sounds right to me. Another check ‘n’ balance is that, if the Leg and Exec come to think a chain of court rulings is completely off the track (as John suggests regarding the commerce clause), they can be overridden by that self-same amendment process.

So why does your friend hate America? :slight_smile:

He didn’t paint John Adams, or his son John Quincy Adams(then a member of Congress) into a corner with the decision though. In fact it would have been in their favor to argue the courts did NOT have the power of judicial review because then, by the logic in the decision, the writ of Mandamus would have been issued under the powers granted by the statute the court tried to strike down. If they didn’t have the power to strike down the statute then Adams’ lifetime appointments which were being held up by Jefferson would have gone through.

The precedent of judicial review by many other courts, including Federal courts, prior to Marbury is a strong indication that judicial review was simply part of the court system. An part so fundamental it need not be written down. By the time the US Constitution had been written judicial review had nearly two centuries worth of history/usage in British jurisprudence.

This is further borne borne out by the simple acceptance of the instances of the use of this judicial power in the numerous pre-Marbury decisions and in Marbury itself.


The issue arises because the Constitution fails to describe any procedure to be used for resolving Constitutional disputes. Since people tend to take legal disputes to court, such arguments end up there by default (unless they were already there, as in the case of somebody arrested for violating Law X and defending himself on the ground that Law X violates the Constitution).

Perhaps you could ask your friend to describe an alternative procedure to be followed for resolving such conundrums.

The answer, or the jist of it, as I recall, was essentially “somebody who isn’t nine individuals appointed for life and capable of ignoring the will of the people.”

“Absent the power of Judicial Review…”

Well, insist that he be more specific, and point out the obvious problem with allowing the power of constitutional review to rest with the very politicians who make the constitutionally questionable laws in the first place.

It means using analytical doctrines like substantive due process to resolve questions of interpretation, Scott.

So, that is a big “Yes.” then.

::Edges away from Rick, slowly, making sure not to turn his back"

He was having none of my ‘prevention of the tyranny of the majority’ rebuttal. Dunno. Maybe a Supreme Court Justice bit him as a child…

While “doing violence to the principle of strict construction” is a nice turn of phrase it means nothing more than saying posting to the SDMB in the afternoon is “doing violence to the principle of resting during the siesta.” The tradition of the siesta is non-binding, no matter how many people are attached to it or think it is a good idea. Strict constructionism is a nice idea that I have a lot of sympathy for, but just like the siesta it has to bow to reality. In an ideal world strict constructionism would provide the closest we could come to fair and impartial justice, following the letter of the law in all instances without other influences. The law is the law and it is public and explicitly signed off on via the public or their explicitly elected representatives. Applying it as closely as possible to how it was written is, in theory, as fair a system as could be designed. No suprises, no shock at finding something new in a penumbra or emanation.

I, however, have very little faith in the ability of legislators to capture the spirit of the law in the letter of the law. The letter of the law is a flawed mirror of the spirit of the law and when they are in conflict the letter should yield. Determining the spirit of the law is sometimes tricky, but in the specific case of Substantitive Due Process I have reviewed the doctrine and the documents which it emanates from and find them in accord in my own judgement, so I am at peace with it. In other words, SDP repairs a place where the imperfect mirror of the ideals of the constitution were not accurately captured by the text. Due process necessarially implies a purpose for having said process. If there is a process without a legitimate purpose then it should be scrapped.


You may want to point out that many instances of judicial review involve federal review of state enactments (for example, the recent eminent domain and Ten Commandments controversies). Review of state law doesn’t rest on Marbury v. Madison, and it’s more explicitly grounded in the text of the Constitution.

Article VI.

coupled with Article III,

In other words, the Constitution all but compels state judges to apply judicial review to state laws, to determine whether they square with the federal Constitution, and provides for their decisions in such matters to be reviewed by federal courts.

No it doesn’t. It wasn’t until the 14th amendment was passed that the Bill of Rights (first ten amendments) were considered binding on the states. For example, a state could “establish” a religion, as many in fact did, in the early years of the republic.