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Why Do We Have Judicial Review?

Gene Callahan calls it “John Marshall’s magical feat“: the Supreme Court’s assumption of the role of “ultimate arbiter of the U.S. Constitution,” a feat accomplished by, well, assuming the role first and then declaring it already in evidence. The Supreme Court wouldn’t be able to act as ultimate arbiter unless it were already acting as ultimate arbiter, so there you have it. QED.

I suspect Gene is not calling attention to this to make a pseudo-constitutionalist claim that this development is illegitimate because final interpretive power really rests with a plethora of state courts and legislatures, or with the national legislature, or maybe—in John Yoo’s world—with the president and all his executive energy. But since Gene isn’t explicit, let me raise this question: why did the Supreme Court succeed in this, and how else might he question have been decided?

Too many citizens don’t even realize that these are questions. A certain kind of naive constitutionalist looks down on his less critical countrymen who have never thought about what the Constitution actually says about its own interpretation. (Answer: not much.) What makes a constitutionalist naive is arresting his own inquiry at the point of believing that charters of government do not require—or provoke—much interpretation, and that cold words have an immediate universal meaning for all who read them, whether the reader is an ordinary citizen or a member of one of the branches of government.

The problem is deeper than it first appears: if a text is merely ambiguous in places or if there are occasions when reading between the lines is called for, that’s one thing. You can admit that and still believe in an “immediate universal meaning,” even if it’s a little hazy and has to be teased out by some one form of right reasoning. Then the true meaning has been found.

That approach leaves out the personal element—namely, can you rely on the good faith of other interpreters? Is it even obvious to an interpreter when he’s acting in bad faith? What kind of interpreter is so disinterested in the question of the national charter (and the power to define that charter) as not to be subject to any degree of parti pris? There’s a tradition in political philosophy of the outside legislator—a figure not already wrapped up in the disputes of a society who comes from another land to grant an objectively good and disinterested constitution. But this tradition doesn’t typically take up the problem from there, which is that there’s more than one way to read any constitution, and there’s more than one way to want to read a constitution. It’s a matter of will and intention, and art, as well as knowledge.

One thing the U.S. Constitution does is to create in law several institutions—in general, the three branches of the federal government—and to prescribe relationships among them and between them and pre-existing institutions such as state governments and individual citizens. Each of these institutions is a player in the constitutional game.

But the rules have been sketched rather broadly, and no umpire has been named. What happens next? Think about how you would play a game in this situation. The players have agreed to come together, they have rules uniting them already, which means that a community has been formed sufficient to develop its own informal structure. An umpire will be found “spontaneously,” and the players will pick the umpire—or accede to the pick of the majority or the prevailing opinions—who they think will best apply the rules. Different umpires could have been picked, but presumably the players found other possibilities less satisfying.

The rules don’t dictate the umpire, the spirit of the game does—as it is understood by the players themselves.

This process of players obtaining status as players—by joining the team or being defined as players within its rulebook—and then deciding among themselves how they shall actually play the game, is much more fine-tuned than any written set of instructions could possibly be. Prudential judgment gets exercised every step of the way; empathy and a spirit of wanting to play informs decisions at least as much as rational calculation does. As long as that spirit of play—and it’s an interested, not disinterested spirit—is present, and the sense of common identity or purpose is strong enough, formal rules may not be needed at all. That’s how many countries are able to get by without written constitutions. The U.S. didn’t have that luxury, however, as from the moment of independence it was a patchwork of players who had different games in mind. Agreeing which game was to be played was the first step, and that required a degree of formality—the written Constitution—unnecessary elsewhere.

Rules and umpires chosen in this way are subject to revision. But over time precedent itself, both in a sport and in law, becomes an overarching rule, settling what would otherwise be a stressful process of always questioning every call. Quite apart from whether one agrees with an umpire’s judgments, this procedure for picking an umpire—and the reasons one should abide voluntarily even by decisions one dislikes—is a part of what it means to play the game.

For the U.S., maybe a consensus of the states would have supplied a better form of umpire or “ultimate arbiter” than the federal Supreme Court. Or perhaps Congress should have had the authority of the British Parliament, whose laws cannot be overturned by any court of the land. (That precedent is actually not as clear as it may seem; it’s a topic for another time.) Actually, in the case of Congress, that’s very unlikely—the British Parliament, after all, wields executive as well as legislative power, and that means  Parliament is institutionally sovereign in a way that Congress cannot be. If Congress did have final say in constitutional interpretation, it would pretty soon possess executive power, and at that point we would have a parliamentary system. As for consensus, we arguably have a wider kind of consensus system—a consensus of all interested players—than one merely taking the states into consideration. But consensus can break down in any model and lead to war. It’s the spirit of the game that keeps the players playing when they disagree with one another; no choice of umpire can avoid all dissension or resolve every dispute agreeably.

There are many reasonable opinions on this subject, both in theory and practice. What I call attention to here, however, is the way the process itself works, the process of deriving a playable game from a set of rules that do not enforce themselves.

about the author

Daniel McCarthy is editor at large of The American Conservative. His writing has appeared in the New York Times, USA Today, The Spectator, The National Interest, Reason, Modern Age, and many other publications. Outside of journalism he has worked as internet communications coordinator for the Ron Paul 2008 presidential campaign and as senior editor of ISI Books. He is a graduate of Washington University in St. Louis, where he studied classics. Follow him on Twitter.

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