Putting Judicial Review into Perspective by Dennis Haugh

Understanding Constitutional checks and balances stands as perhaps the shiniest example of the failure of the educational system in the 20^th century. If one looks up “checks and balances” on the Internet, a triangle pops up showing each of the three branches of the national government checking and balancing each other as being the complete system of checks and balances. That is what is taught today throughout the educational system. As I explain in Political Vertigo, this is a misrepresentation of the Constitution. It ignores the vertical checks that were in the original Constitution and the Bill of Rights (Amendment 10). The contemporary view is more about balancing power within the national government. The vertical checks are the true checks on the power of the national government. They have been ignored both by the educational system and by our practice of governance.

This post discusses the role of judicial review within the system of checks and balances. To be clear, Edward Corwin was the first to use the term, judicial review, in 1910. The founders used no such term. Dr. Robert Lowry Clinton’s view is that it should really be called judicial supremacy. Nobel Prize winner Gordon S. Wood also uses this term. Although Dr. Wood considers Dr. Clinton to be a revisionist, it is a more accurate term.

Madison left us solid evidence that the framers in the Constitution Convention firmly held that the Supreme Court did NOT have the power to determine and impose what was constitutional and what was not. The Convention notes speak for themselves and affirm that the text in Article III section 2 confines the Supreme Court to rendering judicial opinions only. It does NOT give the Court the authority to dictate to either of the other two branches. This is where the precision of review versus supremacy is important. The accepted view today is really that the Court has an absolute check on the other two branches.  That is supremacy.

The contemporary view taught by the education system is that Marshall “assumed the right of judicial review” in Marbury v. Madison. There are a few ironic twists to this view.

1.    Marshall rightly argued that when a law and the Constitution conflicted, the Constitution is to prevail. This is the main intention of a written Constitution.

2.    He further argued that the legislature could not expand constitutional power of one of the national branches. Such an increase in power required the Article V amendment process.

3.    The Court actually ruled that it did not have the power to issue the writ of mandamus because it did not have original jurisdiction in the case.

Bullet one above is a given, and his application of it in the decision is proper and compatible with the framers’ “constructive limitation to a judiciary nature”. The distinction to be made is that nowhere in the ruling did the Court order either of the other branches to do anything, nor did it invalidate any law. Within the ruling, the determination was made that the Judiciary Act of 1789 could not legitimately augment the Court’s original jurisdiction over the limitation in the Constitution. It is ironic that this part of the argument is taken as the justification for judicial review – which is abstractly in violation of bullet two.

Bullet two argues that the legislature cannot expand constitutional power by a law. It is ironic that proponents of judicial review hold that the judicial branch CAN expand its own judicial power by judicial ruling. The inconsistency should be obvious. Such an increase in power should require an amendment to the Constitution – just as it should for the legislature.

Bullet three is interesting in that the Constitution actually does give the Supreme Court original jurisdiction for “other public officials”. As Secretary of State, Madison was a public official, so the Supreme Court did have original jurisdiction -- by the Constitution, so the Judiciary Act of 1789 was irrelevant. Marshall ignored this and inverted the ruling by making an unnecessary argument. The ruling is an example of how different conclusions can be reached by selecting different priorities as a basis – and ignoring evidence.

If the Constitution doesn’t give the Supreme Court the power to check the other two branches and Marbury v. Madison didn’t establish the power legitimately, how is it that the national government operates as it does? One of the modern tools that I introduce in Political Vertigo is the Strauss-Howe generations model. As generations have turned, there has been gradual acceptance by legal precedence. History has showed time and again that such power shifting happens. This is exactly why theoreticians as far back as Aristotle have proposed written constitutions to stop the phenomenon. As Hume stated, “It is seldom, that liberty of any kind is lost all at once”.

What is the effect of institutionalized judicial supremacy? If we pause to think about it, our disappointments are really that the Court doesn’t strike down a law. The framers would say that we messed up by electing representatives who would pass such laws in the first place. Their expectation was that we, as the ultimate arbiter, would vote out such representatives and vote in ones that would repair the damage. Their take on our current circumstance would be that we are no longer capable of self-governance because we have become so corrupt as a society that we cannot effect the change via election – whether it is our voting or the result of the votes. Let us consider “Obamacare”.

Most of John Robert’s opinion on ACA was actual on target. The ruling of it as a tax is more than controversial, but there were some very sound points in it. Perhaps the most overlooked statement in the opinion was that he actually stated that we need to quit looking to the Supreme Court to strike down legislation. In fact, that was the founders’ expectation. On the other hand, the people did exactly what the framers expected. They voted in a Republican Congress with the expectation that they would repeal ACA. Congress did not do that. The reelection of Barack Obama signals a weakness in society’s public virtue. A Presidential veto was certain, and Congress failed to show the moral fiber to legislate a repeal.

What the Republican majority in Congress did was to let political faction override the will of the people. In chapter 8 of Political Vertigo, I analyze the modernizations required to restore Madison’s foundational analysis of factions. As things stand, the mechanism that the framers expected us to employ (voting) has been rendered ineffective by factions – and abandonment of republican principles.

The framers did give us another mechanism to exercise our role of ultimate arbiter. That mechanism is the second method of proposing amendments in Article V. Unfortunately, the framers were trailblazing a new concept to put an amendment process into the Constitution, so they didn’t get all the parameters right. In particular, they miscalculated just how difficult it would be to get an Article V Convention of States called. We have 225 years of data to do an analysis, and I do that in chapter 7 of Political Vertigo. At this point, we have gone so long without this course correction, it is not clear that we can ever agree to call such a convention. Many who would otherwise advocate such a convention are too scared of the results – because they know that society has become so corrupted. The results of not attempting this mechanism are obvious. Those who fear a convention should realize that the risk is not going diminish over time. It will only increase.

There is still more to mention about judicial supremacy itself. One of the modern tools introduced in Political Vertigo is Pournelle’s Iron Law of Bureaucracy, which really applies to any organization. In a nutshell, there are two groups of people in an organization. The first group promotes the goals of the organization. The second group promotes the organization itself instead the goals. Finally, group two always gains control and makes the rules.

It is interesting to ponder how Pournelle’s Iron Law applies to the Supreme Court. It should be obvious by John Roberts continual saving of Obamacare that he is in group 2. In all probability, most Chief Justices have been in group 2. The result is that the Supreme Court has steadily increased its stature rather than focused on its true role in government. Dr. Gordon S. Wood published a paper in the Washington and Lee Law Review in June of 1999 called The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less. The article covers the historic journey and attitudes surrounding judicial review and judges in general. It is one article of many that lionizes Marshall for promoting the stature of the court – which is exactly what group 2 attempts to do.

      Dr. Wood’s article reveals more than history. It reveals the author’s own perspective on the history. To the author, Jefferson was behind the times in his attitude of restricting judicial power. He also considers it enlightened to centralize power in the national government. As I write in Political Vertigo, academics almost universally rate Presidents highly who have actually exceeded their constitutional limitations rather than respected them. The same is true for academics and the legal profession with respect to justices. They also approve of the centralization of power (and money) into Washington DC. The power dynamic has been power being acquired by the national government to the detriment of the states. With the states being the “agents of the people”, this means that the people have progressively less real representation.