It's Time to End Judicial Review (Mar 05 article)

townhall.com ^ | Mar. 16, 2005 | Ben Shapiro

[tee-sixtytwo]

Perhaps judicial review wasn\'t such a great idea after all. In Marbury v. Madison (1803), Supreme Court Chief Justice John Marshall assumed the power of judicial review over acts of the legislature. According to Marshall, the Constitution vested in the Supreme Court the ability to overturn legitimately enacted laws if those laws conflicted with the Constitution itself.

It is anything but clear that the Constitution meant to create the power of judicial review. Marshall\'s opinion is full of holes, both textual and logical. As Judge Learned Hand stated, Marshall\'s opinion \"will not bear scrutiny.\" Professor Alexander Bickel of Yale University agreed in his work \"The Least Dangerous Branch\": \"The opinion is very vulnerable.\"

Still, judicial review works well in theory. The basic principle is this: Legislative acts of the people may not trump fundamental, universal values as expressed in the Constitution. Alexander Hamilton phrased it this way in Federalist No. 78: \"where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental.\"

But Hamilton admitted that if the judges were disposed to substitute their will for the will of the people, if \"they should be disposed to exercise WILL instead of JUDGMENT ? [that] would prove that there ought to be no judges distinct from that [legislative] body.\" In other words, if the judges were to become merely a political branch, where a majority of five could trump a majority of the people while falsely claiming allegiance to the Constitution, then that would be an argument for dissolution of the judiciary as a distinct branch of government. Life tenure was supposed to guard against the politicization of the judicial branch.

Hamilton had faith that the judiciary would not overstep its bounds, due to its relative lack of power. But, he added, \"I mean so long as the judiciary remains truly distinct from both the legislature and the executive.\"

Anti-federalist Robert Yates, writing under the pseudonym \"Brutus,\" was more skeptical -- and, as it turns out, prophetic. Of the judiciary he wrote, \"There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.\"

This situation has come to pass. The Supreme Court has consistently, for the past 50-odd years at the very least, substituted its judgment for the judgment of the people, without regard to the Constitution. In Roper v. Simmons, five justices of the Supreme Court happily exceeded their powers by banning states from applying the death penalty for people under 18. Justice Antonin Scalia, dissenting, pointed out that the Supreme Court\'s usurpation undermines the entire basis for judicial review: \"What a mockery today\'s opinion makes of Hamilton\'s expectation, announcing the Court\'s conclusion that the meaning of our Constitution has changed over the past 15 years -- not, mind you, that this Court\'s decision 15 years ago was wrong , but that the Constitution has changed .\"

Scalia reiterated his point this week in a speech to the Woodrow Wilson Center think tank. If the Supreme Court is to be invariably and inescapably political, Scalia said, \"you realize we have rendered the Constitution useless.\"

Indeed, we have. The time has come to do away with judicial review as a whole. The judicial branch has been politicized to such an extent that judges who fulfill Hamilton\'s qualifications -- judges who compare legislation to the actual Constitution -- are dubbed conservative extremists, while judges who legislate from the bench are termed moderates. The system has become so thoroughly corrupt that the only choice left to us is a Constitutional amendment ending judicial review of legislative acts.

\"How can legislatures be trusted not to violate the Constitution, if there is no check upon them?\" many will ask. The check will be the people themselves. If our elected lawmakers violate the Constitution, they will be answerable to us. This is not the case under our current system: Our judges are answerable to no one.

No doubt this view will be called radical. But, as \"Brutus\" wrote, \"when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm .\"

[tee-sixtytwo]

Judicial review is an illegitimate doctrine found nowhere in the text of the US Constitution. It has caused the American people nothing but grief and--at worst--loss of liberty and even (in the case of Dred Scott) war. Moreover it is the enemy of conservatism and the conservative movement. That is why left-liberals are so in love with this pernicious doctrine. We must urge our supporters in Congress, in the Federalist Society, those (few) conservatives who teach in law schools etc. to see the light on this issue so we can rid ourselves of this pseudo-constitutional yoke.

[Jaysun]

The Constitution grants Congress the right to regulate the Judicial branch, not the other way around.

It's very clear, though that hasn't seemed to matter much in the last 40 years.

[9999lakes]

1. How?

2. If we do, what springs up in it's place?

3. I DO blame the Left for this. It was Them, who began to radicalize the Courts, not only "reviewing" but actually initiating law via the Courts.

4. And the article MAY prove to prophetic, but if it does, what then?

[PGalt]

Good article/comment. Thanks for posting both. Welcome aboard!

[stevem]

I always thought it interesting that Marbury vs. Madison was the case ushering in "Judicial Review." Yet the case itself was one in which specific effect was that the Supreme Court of the day declined to assume a power that the Congress of the day tried to give the court in an effort by Congress to duck a responsibility.

Somehow by deliberately reducing its own authority, the Supreme Court became a body with oligarchic characteristics that are approach tyranny.

[Brilliant]

I've always said that if the Courts continued to abuse their power, they would suffer checks and balances, and that ultimately Marbury could end up going the way of the do-do. Obviously, the Supreme Court is not going to reverse Marbury, but Marbury would not have clout were it not for the fact that both the Executive Branch and the Congress have respected it. If both branches were to say "We think the Court has gone too far, and we simply aren't going to recognize this decision," then the Court would have no means to enforce its decision.

I don't think that the Justices have thought this out too well. They do not have the absolute power that they think they have.

[Admin Moderator]

Good article/comment. Thanks for posting both. Welcome aboard!

And don't let the door hit you on the way out.

[Jaysun]

Nothing springs up in it's place. The fear of a tyrannical legislature is theoretical (and correctable by vote). A tyrannical judiciary is a reality. As to how, Congress could start impeaching the bastards.

[Jaysun]

And don't let the door hit you on the way out.

What did he do?

[Admin Moderator]

Previously banned. Many times.

[xzins]

Judicial review is assumed in Art III that says: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.......In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

That seems pretty total to me. The exception, of course, is that they do so under the regulation of Congress. The exception demonstrates the assumption of the judiciary's great reach. If they didn't have that reach, why give the Congress the authority to limit that reach?

In any case, this is what was the great violation yesterday in the Guantanamo decision by the Scotus according to Billybob.

Congress HAD TOLD the judiciary that they couldn't review Guantanamo, but they did so anyway. Their claim was that the restriction only applied AFTER its passage. They proceeded to deal with issues that had arisen before its passage. At an "ex post facto" kind of level, this has the appearance of making sense, but the wording of the restriction seemed to me to indicate that it was total.

Scotus seemed to be saying that Congress could not restrict it from considering situations that had arisen prior to Congress restricting it.

That seems silly on reflection because that would always be the case unless Congress were endowed with some form of prescience...which it isn't.

[ml/nj]

From FEDERALIST No 28. (Hamilton)

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.

ML/NJ

[ClaireSolt]

Thanks for your efforts. They keep it sane, here, as it gets pretty rough sometimes.

[katyusha]

--We must urge our supporters in Congress, in the Federalist Society, those (few) conservatives who teach in law schools etc. to see the light on this issue so we can rid ourselves of this pseudo-constitutional yoke--

That is the HOW. He had it right there in his last paragraph. No doubt it would take a long time, but a constant drumbeat to the American people that their general will is being constanly usurped by 9 UNELECTED black robed mullahs might well be the catalyst.

[P-Marlowe]

Congress HAD TOLD the judiciary that they couldn't review Guantanamo, but they did so anyway.

The judiciary is out of control just as was predicted by Robert Yates. It seems that even when Congress and the President jointly move to constitutionally limit their review powers the Courts ignore the constitution in order to continue to secure their usurped and unconstitutional powers.

The members of congress and the president all take the same oath to uphold and defend that constitution that the judges take. There is nothing inherently honorable about serving as a judge. They are as corrupt and power mad as anyone else, but they are above all, the most arrogant of all men.

The constitution does not grant to the judiciary the power of judicial review. That was usurped by the courts in Marbury v. Madison. The court violated the constitution when it reviewed the Guantanmo case in direct violation of the law. The Supreme Court has declared itself above the law.

Unfortunately the only remedy would be to impeach the five justices who directly and arrogantly violated the law of the land and took it upon themselves to review and attempt to overturn the laws of the land that applied solely and directly to them. Congress does not have the courage to impeach these lawbreakers.

I would hope that Bush simply begins the military tribunals and tells the Supreme Court to pound sand. That would be great. The Supreme Court's decision in this case is obviously unconstitutional. It is in that sense a decision that cannot be enforced. It is, in fact, a decision that MUST NOT be enforced.

Let the Tribunals begin.

[katyusha]

--I would hope that Bush simply begins the military tribunals and tells the Supreme Court to pound sand. That would be great.--

PRECISELY! That is exactly what Pres. Andrew Jackson did when the Marshall Court overturned his executive order to relocate the Cherokee. When you think about it, the SCOTUS has no divisions. It relies entirely on moral suasion. If it loses that, it has nothing.

[katyusha]

--I would hope that Bush simply begins the military tribunals and tells the Supreme Court to pound sand. That would be great.--

PRECISELY! That is exactly what Pres. Andrew Jackson did when the Marshall Court overturned his executive order to relocate the Cherokee. When you think about it, the SCOTUS has no divisions. It relies entirely on moral suasion. If it loses that, it has nothing.

[katyusha]

--I would hope that Bush simply begins the military tribunals and tells the Supreme Court to pound sand. That would be great.--

PRECISELY! That is exactly what Pres. Andrew Jackson did when the Marshall Court overturned his executive order to relocate the Cherokee. When you think about it, the SCOTUS has no divisions. It relies entirely on moral suasion. If it loses that, it has nothing.

[xzins]

I think you're right. I think the congressional removal of the court from this case, and Scalia's dissent saying exactly that, is reason for the Bush Administration to proceed with their tribunals. Another reason is that the president is Commander of Chief of the military, we are in an authorized hostility, and how he conducts himself is NOT spelled out in the constitution. He can, on his own authority, imho, proceed with the MILITARY tribunals.

However, if the Schiavo case taught me anything, it taught me that none of these folks are willing to buck the judiciary.

1. Fear of them.

2. Usefulness of them as a "political shield" .... to steal a "human shield" concept from Ann Coulter.

[Jaysun]

Previously banned. Many times.

Just curious. Thanks.

[Congressman Billybob]

As someone who wrote one of his books about Robert Yates, a largely forgotten Framer who sought to defeat the Constitution as written, I agree almost down the line with this article. However, I do not believe that judicial review either can or should be abolished altogether,

Instead, it should be controlled, by aggressive use of Congress' control over the federal jurisdiction. Congress should slap the Court down, by passing a new law (as some Justices suggested) which tells the Court in no uncertain terms to sit down and shut up.

Some language telling out-of-control Justices that if they want to be legislators, they should resign from the bench and run for office, would be desirable and appropriate. But, sadly, I don't think Congress will go that far.

The reason for not abolishing judicial review altogether is that is does have a legitimate pedigree. When the Framers were writing the Constitution, they were well aware of at least two instances where the highest courts in states claimed and used the power to strike down state laws which violated state constitutions.

One of those cases was decided in New Jersey, while the Philadelphia Convention was going on. The other had happened before 1787. It was Caton v. Commonwealth in Virginia. That case was decided by Judge George Wythe.

Who was George Wythe and why should anyone care? Wythe was the first law school professor in America. His students included Thomas Jefferson, George Mason, Patrick Henry, and the like. He was the giant of law at the time. And his logic held sway.

P.S. Interested in a Freeper in Congress? Keep in touch with me.

Congressman Billybob

Latest article: "The Gitmo Prisoner's Case: What the Supreme Court Really Did, and How the Press Blew the Story"

[Libertarianize the GOP]

Judicial nullification is a legitimate judicial power extending back prior to the creation of our Constitution. Judicial nullification simply allows the judge to ignore or treat a law as if it does not exist. If a law passed by congress conflicts with the Constitution then the Constitution takes precedence and the lesser law is treated as if it is not law. It this case the courts are not being asked to apply the law to a specific case. The issue addresses judicial jurisdiction and obviously and necessarily is a power given to congress as a check on judicial power. The courts have no legitimate jurisdiction. The only oversight for how to treat enemy combatants comes form congress and not the courts.

[Jim Verdolini]

"Unfortunately the only remedy would be to impeach the five justices who directly and arrogantly violated the law of the land and took it upon themselves to review and attempt to overturn the laws of the land that applied solely and directly to them. Congress does not have the courage to impeach these lawbreakers."

No, the proper way to deal with the situation is simpler:

1. The president calls a presser. He advises that he believes the court exceeded its authority under the Constitution as concerns limits on the executive and on the Congress under Article III Section III.

2. He invites the Congress to pass a 'sense of the congress' resolution about the specific constitutional issue of ignoring congressional limits on review.

3. He advises that, pending such a resolution, all action by the executive on the Courts decision will be on hold. If the Congress agrees the court was out of line, the decision will be ignored.

4. Then take the issue to the people. Remind them that teh Courts also are limited under the Constitution.

[jude24]

t seems that even when Congress and the President jointly move to constitutionally limit their review powers the Courts ignore the constitution in order to continue to secure their usurped and unconstitutional powers.

Congress's authority to completely strip the Supreme Court of jurisdiction over this issue is dubious at best. Congress may control the procedure - and route it through such inferior courts it deems fit - but all cases arising under Federal or Constitutional law must ultimately be able to be heard by the Supreme Court, or else Congress is infringing on the one and only power the Judiciary has.

[jude24]

The constitution does not grant to the judiciary the power of judicial review. That was usurped by the courts in Marbury v. Madison.

Bull.

"All cases arising under this consitutution." That is judicial review my friend.

[P-Marlowe]

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Since the Supreme Court does not have original jurisdiction over the prisoners at Guantanmo, their appellate jurisdiction is limited by any exception that the Congress imposes. In this case the Congress excepted the appellate jursidiction of the Supreme Court. Therefore they unlawfully took it upon themselves to declare the actions of the Defense Department illegal. They did not have jurisdiction to do that. Their order therefore is void ab initio. Bush is under no obligation to obey it or enforce it.

The Supreme Court has no constitutional authoroity to do what it did and the president is under no constitutional mandate to accept their ruling. In this case since he has sworn an oath to uphold and defend the consitution of the United States, he is under an obligation to tell the Supreme Court to pound sand. He needs to declare their action in this matter unconstitutional.

[xzins]

All cases arising under this consitutution

I thought about that, Jude. That sentence is not a lock.

There is the real possibility it refers to those defined cases already mentioned. The "all" would then be referring to the "list" of those cases already mentioned over which the court is assigned authority.

I rejected that interpretation because of the Congressional power to limit the extent of the court's responsibility, thinking that the court's purview must be broad indeed for it to be necessary to have a provision to limit it.

I think that's pretty solid, but it's not absolute.

That doesn't change the fact that the Congress did go out of its way to limit the Court in this instance.

The court's ignoring that removal could precipitate a confrontation. (I don't think it will because I don't think this group of politicians has the desire to do that.)

We truly are at a position where the executive could ignore the judicial.

1. The Constitution makes the President the Commander in Chief and leaves that totally to him with not a piece of its execution belonging to anyone else. The Court HAD to appeal to Geneva (a treaty) just to be able to get a word in edgewise. And Geneva doesn't speak to the issue.

2. The Congress removed the Courts from considering the case.