Confronting Judicial Review

From Liberty Defense League:

Confronting Judicial Review


Sun, Jun 6, 2010

Featured Articles, Political Philsophy, Wilton Strickland

by Attorney Wilton Strickland

June 6, 2010



If the states are to have any hope of recovering their lost sovereignty, they must be prepared to confront judicial review, a doctrine that federal courts regularly invoke to “interpret” the Constitution out of all meaningful existence and interfere in matters that are none of the federal government’s business. The truth of the matter is that judicial review does not entitle the courts to alter or update the Constitution to suit modern times, considering that Article V frames the amendment process and says nothing about judges who deliberate in secret. Instead, Article V requires supermajorities among the state and federal legislatures to implement constitutional change, and for far too long the courts have usurped this awesome power for themselves. It has to stop now.



A typical apologist for judicial excess will reflexively cite Chief Justice John Marshall’s 1803 opinion in Marbury v. Madison. By doing this, the apologist attempts to cloak himself with the prestige of America’s early years and portray the critic as beyond the pale of respectable discourse. Yet John Marshall declared simply that the court would follow the Constitution rather than a contrary statute; he did not declare that the court may alter the Constitution to suit changing times, and he did not declare that the court’s interpretation of the Constitution binds anyone other than the litigating parties or the lower courts. The true radicals are the ones who cite Marbury to anoint the court as ultimate arbiter of the Constitution for every man, woman, and child across the land. No such status is warranted under Marbury or the American experience.



Properly understood, judicial review is only a tool that courts use to perform their narrow function: if a statute is held unconstitutional, the ruling court and the lower courts will thereafter refuse to enforce the statute to resolve a case or controversy brought before them. This does not obligate the rest of America to agree with the ruling court’s interpretation. If anything, those who swear an oath to uphold the Constitution have a solemn duty not to treat erroneous judicial pronouncements as the law of the land, for the Constitution is superior to the opinions of a single branch of the federal government (which is the very point that John Marshall was trying to make). Abraham Lincoln understood this when declaring that the Supreme Court’s opinion in Dred Scott v. Sandford would not be allowed to resolve the explosive question of slavery.



Before that, Andrew Jackson famously refused to help enforce a controversial opinion by none other than John Marshall concerning the Cherokees in Georgia. If the author of Marbury v. Madison could not expect everyone to adopt his views, the would-be inheritors of his legacy cannot demand the same from us today. The notion that a mere five votes out of nine on the Supreme Court may amend a Constitution whose own terms require nationwide supermajorities is ridiculous as well as repugnant.



Contrary to all this, the modern Supreme Court presumes that its opinions are indeed superior to the Constitution itself. Riding a wave of idealism during the civil rights era, the court proclaimed in Cooper v. Aaron that “the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.” (Emphasis added.) Otherwise stated, if the court declares that down is up, left is right, and black is white, then all of America is obligated to agree.



This judicial hubris is drilled into law students on a regular basis, many of whom lack intellectual curiosity to begin with and whose professors eschew teaching the Federalist Papers or any other source of true insight into the Constitution’s meaning and purpose. The end product is a legal and political class that has abdicated its duty to understand, and thereby uphold, the supreme law of the land.



It amazes me that politicians have not appealed to populist sentiment on an issue as important as this. Whenever faced with the trite declaration that the Constitution is a “living document” that must change with the times, the slam-dunk response is: “Yes, and we the people are the ones who have the right to change it, not nine people meeting in secret.” Judges who presume to know how the Constitution must change, and further presume that they may enact such change without seeking America’s approval, are unfit for office. But this is par for the course with a federal government that presumes it knows better than we do how to spend our money, educate our children, or generally pursue our happiness. This will not last because a government that destroys its founding charter also destroys its own legitimacy — if government refuses to obey the law, what reason do we have to obey the government?