VIII.2: Was Judicial Review Inevitable?

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Was Judicial Review Inevitable

Judicial review transfers constitutional decision-making power from the legislature to the courts.

The legislature writes a law. Then the executive branch implements it. And finally the courts apply it to specific cases. As a result, this sequence of events alone implies that judicial review was inevitable:

The speedy transfer of this reliance from the legislatures to the courts was, however, inevitable from the very nature of the American political system. … Where departments … are theoretically coordinate and equal, that which acts last has a clear advantage over the others. … [T]he department which acts last … is the judiciary. (Holcombe and Wells 1919, 62)

Alexander Hamilton pushed harder for a strong and supreme central government than anyone in the Constitutional Convention.

For example, in the Federalist Papers, Hamilton wrote:

[T]he courts were designed to be an intermediate body between the people and the legislature … to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. … [T]he Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. 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…. (Hamilton 1788, 78)

But how could Hamilton say that the power of the people is superior to the judicial branch? That is, the people cannot even elect (or remove) that branch’s highest members. He said the intention of the people is in the Constitution. On the other hand, he also said that the Supreme Court, and not the people, should decide what the words in the Constitution mean. In other words, did he contradict himself?

Meanwhile, the nine people on the Supreme Court have on many occasions used judicial review to decide that the interpretation of the Constitution should change from previously held judicial opinions.

To clarify, they say changes are necessary when the current generation of Americans views the Constitution differently than previous generations. Furthermore, the court has used what they decide to be “popular opinion” to interpret words into the Constitution that are not physically there. For example, the words “Congress shall make no law respecting an establishment of religion” have been expanded by Supreme Court command to apply to state legislatures and even state courts. Nine people decide for themselves what the millions of us think and we have no input at all.

America’s founders were all educated deeply in Sir William Blackstone’s Commentaries on the Laws of England. Blackstone said that only the legislature, the people’s directly elected representatives, could declare what is or is not constitutional. But under the Articles of Confederation, America had experienced horrible laws from the state legislatures. So some founders believed judicial review was necessary. And that implies that judicial review was inevitable.

[Judicial review] ran too directly counter to the Blackstonian theory of legislative sovereignty and to the Americans’ fear of judicial discretion. [However, John] Dickinson, like others … “was at the same time at a loss what expedient to substitute.” (Wood [1969] 1998, 455)

Similarly, nobody in the Constitutional Convention could think of a better way to decide if a law was constitutional or not.

Can you think of a better way to interpret law? Was judicial review inevitable? Is it even possible that “we, the people” could have any real input to that decision without causing chaos in the American legal system?

This site is for discussing how to improve our political system. It is NOT for discussing party politics or political figures. So if you have a non-partisan question or comment, feel free to leave it below.

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Hamilton, Alexander. 1788. The Federalist Papers by Alexander Hamilton, James Madison and John Jay.

Holcombe, Arthur N., and Roger H. Wells. 1919. State Government in the United States. Norwood, Mass.: The MacMillan Company.

Wood, Gordon S. [1970] 1998. The Creation of the American Republic, 1776-1787. 1998 edition. Published for the Omohundro Institute of Early American History and Culture. Chapel Hill and London: Copyright © 1970 by the University of North Carolina Press; new preface copyright © 1998 by the University of North Carolina Press. Used by permission of the publisher. Inner quote is from Commonwealth of Va. V. Caton and others (Nov. 1782).

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