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Why Do We Have Judicial Review?

Gene Callahan calls it “John Marshall’s magical feat [1]“: 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 [2]. 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.

13 Comments (Open | Close)

13 Comments To "Why Do We Have Judicial Review?"

#1 Comment By Geoff Guth On March 20, 2013 @ 3:37 pm

I think the English Common Law tradition is what made the Supreme Court’s role inevitable. Read any 16th century decision from the Court of King’s Bench and you’ll see much the same kind of reasoning going on as you do in American appellate jurisdictions today. All the Constitution did was add an additional wrinkle to the arguments based on statute and Common Law precedent.

#2 Comment By Zathras On March 20, 2013 @ 3:52 pm

The Legal Realist answer is that Marshall won out because it supported the short-term desires of those in power in the other branches at the time. Jefferson was glad to get rid of a possible PITA judge. It wasn’t challenged because it was a favorable result. Nobody challenges a decision that was won.

#3 Comment By Rambler88 On March 20, 2013 @ 5:16 pm

The article is a valuable reminder of the importance of history and fundamental concepts. But the wording of the Constitution, though it may require interpretation, is not infinitely interpretable. If it were, there would be no need of a constitution.

Consider an umpire who, against one team, consistently enforces the rulebook penalties against egregious violence, while consistently overlooking the same offenses by another team. In sports, he wouldn’t last long.

The system of judicial oversight that has evolved in the U.S. has only the slowest and most cumbersome mechanism (constitutional amendment) for overturning even an individual call by such an umpire sitting on SCOTUS. There is no mechanism at all for removing an umpire who is obviously partial, or even obviously corrupt or insane. A survey of the behavior of the American judiciary in general will show that the latter two possibilities are not merely rhetorical points. (Absolute power, and all that….) Removal of a justice whose decision is egregiously in violation of the Constitution is unthinkable. Other branches are restrained by the system of checks and balances that was explicitly a fundamental principal of the Constitution. The review powers, and the monopoly on review of constitutionality, of the Supreme Court is a post-constitutional development that has evaded checks and balances. (Congressional approval of nominees is clearly not adequate to maintain the rule of law and the credibility of the Court, as witness Sotomayor.)

#4 Comment By Dan Phillips On March 20, 2013 @ 5:31 pm

This is a good argument for why we should have stuck with the Articles of Confederation.

#5 Comment By libertarian jerry On March 20, 2013 @ 5:35 pm

With the way that history has unfolded it is obvious,to any neutral observer,that Americans don’t live in a nation of laws but a nation of a few powerful men. These powerful men,mostly behind the scenes, have an enormous influence on all 3 branches of government. They have bought and paid for most of the politicians in power over the last 80 years or so. The Supreme Court decides what is lawful and not lawful. Thus the government can act as its own referee. When it comes to issues involving the power elite such as monetary policy,legal tender laws,taxation,banking etc.the Supreme Court won’t rock the boat. When it comes to cultural issues,that don’t really effect the power elite or for that matter most Americans, the Supreme Court then puts on its dog and pony show as to the “rights” of minorities,homosexuals,abortion “providers,” women etc. But,in the end,the power elites usually get what they want which is that the status quo remains. The Constitution,as its intent was envisioned by most of the founders,no longer applies in the modern world. In essence it is a dead letter. In effect our Constitutional Republic has degenerated into a bankrupt,fascist mobocracy controlled by a few elitists behind the scenes.

#6 Comment By Liam On March 20, 2013 @ 7:15 pm

So many people who espouse a greater federalism tend focus almost entirely on the federal culture of judicial review and ignore judicial review at the state level, assuming that it necessary has followed the federal lead. But, in fact, judicial review at the state level is even older than the federal. The Massachusetts courts, topped by the Supreme Judicial Court, the oldest appellate court in the New World (founded after the Salem witch trials), exercised judicial review before the federal constitution was adopted. The Massachusetts constitution, largely drafted by John Adams and adopted in 1780, did not free slaves, and that was a deliberate omission (Massachusetts was, with Rhode Island, at the northern apex of the Triangle Trade….one reason for all that Medford rum and those molasses baked beans….). Yet, within 3 years, Massachusetts courts found slavery not only in violation of the rights secured in the state constitution, but decreed them freed without compensation to the owners. Moreover, the other branches of government in the Commonwealth did not overturn this muscular exercise of judicial power. Massachusetts courts retained that muscular habit until they switched to more judicial restraint in the Gilded Age, but eventually, after several generations, recovered some of their muscular former ways. This kind of history is largely ignored.

#7 Comment By Fran Macadam On March 20, 2013 @ 9:18 pm

I honestly think the way forward, enabled by technology, is to create governance by the most direct democracy possible. That is, direct democracy via the internet, rather than via intermediaries elected by votes of the people but who are nevertheless contrarily most accountable to giant corporate donors.

Au contraire Fukiyama, this is the endpoint of history.

#8 Comment By William Dalton On March 21, 2013 @ 12:11 am

When I studied at the UNC School of Law in the 1970’s, we had a Professor of Constitutional Law, Frank Strong, who had an explanation for this phenomenon in our history of the Courts and the Constitution which never caught on among his fellow authorities in the field, but makes some sense to me. What most scholars call “judicial review”, the power of courts to “review” and declare legislative enactments “unconstitutional”, was something Professor Strong labeled “constitutional review”, which he distinguished from the kind of “judicial review” exercised by the courts of the U.K. and English America, those which applied the rules and traditions known as the English Common Law. Marbury v. Madison, the seminal case considered by most scholars to have broken new ground in establishing the power of “judicial review”, was, in Strong’s opinion, merely the exercise of a judicial power which had a long history and was therefore not controversial when it was handed down. Marbury was peculiar because the statute being reviewed was not a statute of general application, but one which applied only to the Supreme Court itself, attempting to give it jurisdiction over a particular kind of case, brought in a particular posture, which some on the Court recognized fell outside the jurisdiction allowed to it under Article III of the Constitution, and outside what Article III allowed Congress to assign to it. By declaring that, under the Constitution, they had no authority to hear and decide the case, despite a Act of Congress purporting to give them that authority, the Court was exercising an old and established power in any court – the power to rule on any challenge to its own jurisdiction.

Marshall’s opinion in the case has been recognized as a stroke of genius. His Party, the Federalists, had been defeated and removed from government by the party of the new President Jefferson. The dispute brought to the Court was the question whether Jefferson’s Secretary of State, James Madison, could be compelled to deliver the letters of appointment to certain would be office holders which had been signed by John Adams before his term expired, but never given to the appointees. By holding that his Court had no power to command Madison to deliver these papers and install Adams’ men in office, even though Congress thought it had given the Supreme Court the power to do so, Marshall exercised the power to overrule Congress in the posture 1) only of refusing a power that Congress was seeking to give to him, thereby not intruding upon the actions of any other official who might seek to act under some other Congressional enactment, and 2) of refusing to take an action that would be offensive to Jefferson’s Party, thereby putting Marshall’s adversaries in the position of not being able to complain about the ruling. And, yet, the die had been cast.

In the years that would follow, litigants would challenge other acts of Congress, ones not involving the Court’s jurisdiction, as violative of the Constitution, and the Court would consider those challenges, but it never struck down such a statute. Eventually, it did consider Constitutional challenges to certain state laws and upheld those challenges, but it was until it was used in 1857, in a case involving Congress’ attempt to regulate slavery in the non-state Territories of the United States. In “Dred Scott v. Sandford”, the Supreme Court held that Congress’ act exceeded the authority granted it under the Constitution. This, of course, was not a decision that was well received. It led most directly to the Civil War. But the issue which inflamed the public was not that of judicial, or constitutional, review. The assertion of the Court’s power to review, and declare unconstitutional, legislative enactments, was considered neither novel nor outrageous. That power, and the public’s acceptance of it, has only grown ever since, even in other cases when the decisions themselves have also been sources of great controversy.

#9 Comment By CharleyCarp On March 21, 2013 @ 2:49 pm

I don’t find anything remarkable in the holding in Marbury. Unlike the British system, the Constitution creates a separate branch of government, and gives it jurisdiction to adjudicate “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States . . . to all Controversies to which the United States shall be a Party” etc. Of course the Supreme Court is given jurisdiction to resolve a claim by one person against another that his conduct is unlawful, and the defense that the law sought to be enforced is void as against the Constitution.

You can’t argue that, as in the British system, judicial power is vested in the legislature, because it is explictly not.

Many people discussing this issue argue as if they think the power of judicial review is exercised independent of the judicial power. It is not. The courts did not sign off, for example, on the execution of Aulaqi: concluding instead that there was no proper case before them. Dred Scott turns on whether Mr. Scott could bring a suit in federal court under the Judiciary Act — and surely no one can argue that a court is incapable of ruling on a challenge to its own jurisdiction. The Supreme Court does not rule on the constitutionality of statutes unless it must do so to resolve a case before it.*

I don’t think Jefferson approved of Marshall’s opinion in Marbury — and certainly don’t think he approved of Marshall’s views in general (including, especially, in the Aaron Burr matter).

* OK, that’s the theory, and it’s what they say, every time. This doesn’t mean I don’t agree that in individual cases, they’ve made the wrong call on either (a) the need to resolve a constitutional issue or (b) the resolution itself. It’s a human system, subject to flaws.

#10 Comment By cka2nd On March 21, 2013 @ 4:32 pm

Rambler88 says: “Removal of a justice whose decision is egregiously in violation of the Constitution is unthinkable.”

Doesn’t the Congress have the power to impeach a Supreme Court Justice? I know they can and have impeached and tried federal judges.

#11 Comment By William Dalton On March 21, 2013 @ 5:21 pm

“You can’t argue that, as in the British system, judicial power is vested in the legislature, because it is explictly not.”

Charley, the argument is not that judicial power is vested in the legislature, but that the power to interpret and apply the Constitution is vested in all three branches of government, each to make such determinations for itself. For instance, the Courts can, as they did in Marbury, decide that the Constitution does not authorize them to hear a particular case, some statute of Congress notwithstanding. Congress may be persuaded not to pass some piece of proposed legislation, even that desired by the President, because it believes it doesn’t have authority under the Constitution to enact it. The President may refuse to act under a statute passed by Congress, because he doesn’t believe the Constitution authorizes him to do what Congress has demanded. But no branch of government can tell one of the other branches what that other branch can or can’t do, based on that same Constitution. That is what many thought would be the result when the Constitution was ratified, the officers in each branch, taking the same oath to “uphold the Constitution and laws of the United States”.

In other words, if the Congress passes a law it believes is constitutional and the Courts take jurisdiction of a case in which that law must be interpreted and applied, which the Courts believe to be constitutional, the President lacks the power to tell them they can’t. But, analogously, if Congress passes a law and the President acts under that law, or if the President acts without an enabling act of Congress, under authority they believe is granted them in the Constitution, the Courts would have no authority to overrule them, even in a case brought before the Court challenging those actions.

Using Marbury v. Madison, however, in circumstances for which Prof. Strong would have said Marbury provided no precedent, the Court eventually claimed the power in itself to rule on the Constitutionality of the actions of the other branches of the Government, and the people came to believe the other branches were to accede to these rulings of the Court.

It is a testament to the strength and longevity of this system of Constitutional, not just Judicial, Review, that today most jurists and attorneys, let alone common citizens, can’t conceive of such issues being resolved any differently.

#12 Comment By Anderson On March 22, 2013 @ 3:56 pm

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” Seems obvious enough.

#13 Comment By JP On June 13, 2017 @ 6:10 pm

well one way I have seen the argument for judicial review is thus. there are only 4 reasonable places for such a power to be vested. the states, the executive, the legislative branch, and the judiciary. the Civil War rules out it being in the states. if it rests in the legislative branch it raises the question of why there are different powers between laws and the constitution at all and the need for the amendment process. If it were in the executive branch it renders the ability of congress to override a presidential veto moot. the judiciary is the only reasonable place for such a power to rest. whether such a power is necessary at all is obvious as the entire difference between law and the constitutional amendment ceases to exist if such a power does not