A Reply To “The Constitution and Judicial Review”
Alexander S. Peak15 January 2006
[EDITOR’S NOTE: This piece contains language which may be offensive to some audiences. Reader discretion is advised.]
There is an article on The American Thinker entitled “The Constitution and Judicial Review” written by Steven M. Warshawsky. If you wish to read this article for yourself, click here.
What follows are my replies to various excerpts from the article.
The only valid basis for the Supreme Court to declare a law unconstitutional is where such law conflicts with the actual political commitments made by the American people in the Constitution itself.
Isn’t that common sense?
So only about 90% of what our government does is unconstitutional.
The Senate Judiciary Committee hearings on President Bush’s nomination of Judge Samuel A. Alito to the Supreme Court are scheduled to begin on January 9, 2006. The central focus of the hearings will be on Judge Alito’s “judicial philosophy,” that is, on how he conceives of the nature of the Constitution and the role of the Supreme Court in interpreting and applying its provisions to contemporary legal problems. The purpose of this essay is to offer some preliminary thoughts on these topics and to provide a useful framework for evaluating the arguments made by both sides in what is shaping up to be a contentious nomination process.
I saw some of the hearings on C-SPAN. I’m so glad that someone actually brought up Kelo v. New London. That decision most certainly should be over-turned.
Unfortunately, Alito did not express commitment to overturning it.
I think the problem is with how the Senators pose their questions. Alito didn’t want to answer the question on Kelo (and other cases) because a similar case may come up in the future. He doesn’t want to make a commitment so that he can be unbiased when hearing such a case in the future. Which is, in itself, sort’a reasonable.
But it does make me a bit uneasy when a politician can’t just come out and just say, “Kelo was a fucked-up decision. Duh.” Alito may actually choose to go with the Kelo precedent, which would be horrible. Or, he might go against the Kelo precedent, which he should. We don’t really know what he’ll do (assuming this case even comes up again).
But, as I said, it’s probably how the Senators pose their questions. The Senator who asked about Kelo just accepted Alito’s non-conviction because it could come up in the future. Had the Senator asked Alito, “So, if you’d’ve been on the Supreme Court last year when they were hearing the case about Kelo , which way would you have ruled at that time?” then Alito wouldn’t have been able to use the excuse that it may come up in the future, because it wouldn’t be about the future, about future cases, about future arguments, about future decisions. It wouldn’t have been about overturning decisions vs. holding on to precedents. It would have been about that one case at that one point in time, using just those arguments presented at that time in that case. His answer wouldn’t necessarily have to reflect on how he would rule in the future, while at the same time it would give us all a better idea of where he actually stood on those past cases.
With that all said, the answers I heard Alito give all seemed pretty good (except for the answers he didn’t really give, of course). I don’t know if Alito will be a good Justice or not, but I am pretty sure he’ll be confirmed, and I have my fingers crossed that he’ll do a good job. I guess that’s all I can say there, because I’ve no way of knowing how well he may rule.
Let’s begin by looking at a recent Supreme Court decision that generated enormous controversy, Lawrence v. Texas (2003), in which the Court ruled that “a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct” was unconstitutional.
Well of course that’s unconstitutional. Anyone that’s read the ninth amendment should knows this. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
You see, people don’t understand rights. Many assume that the only rights that exist are those that are enumerated in the Constitution. This, of course, is not the case.
In fact, many patriots were opposed to having a Bill of Rights because they feared that future politicians (like the ones we have today) would say, “Hey, you don’t have that right. The only rights you have are those that are in the Bill of Rights.”
This was a BIG fear for these patriots. That’s why they ratified the 9th amendment: to make sure that government would not be able to regulate us.
Philosopher Tibor R. Machan wrote an editorial regarding the importance of the ninth amendment, which can be found here on the Free-Market News Network. I recommend reading that, to anyone who’s interested.
Rather, I want to ask a more fundamental question: Whence comes this power of five (or more) Supreme Court justices to invalidate the laws passed by state and local legislatures?
Clearly, the Constitution. The Supreme Court has the authority (and I would argue that if such a case comes before the court, it is their responsibility) to invalidate every gun law in America.
The Supreme Court has the authority (and I would argue that if such a case comes before the court, it is their responsibility) to invalidate every pro-slavery law in America.
The Supreme Court has the authority (and I would argue that if such a case comes before the court, it is their responsibility) to invalidate every use of cruel or unusual punishment in America.
Don’t take offense to this question, but have you even read the Constitution? Really, I don’t mean to offend, but I thought everyone knew this.
It is axiomatic that ours is “a government of laws, and not of men.” Yet a handful of Supreme Court justices sitting in Washington, D.C., have the power to declare the laws passed by any of the nation’s democratically-elected legislatures, including Congress, null and void.
Of course! If they didn’t have this power, there would be no checks or balances on the Legislature!
And, I heard somewhere that people on juries also have the authority to repeal unconstitutional laws.
This extraordinary power is not the result of the justices’ superior wisdom and intellect (as any law professor will eagerly attest!). Nor does it derive from the justices’ popularity among the people, which public opinion polls show is steadily waning, or from the justices’ ability to enforce their own orders, which can only be enforced by the executive branch. See, e.g., the Little Rock Crisis of 1957.
Extraordinary power? It’s not extraordinary. It’s ordinary, assuming “ordinary” means ‘reasonable’ and “extraordinary” means ‘superfluous.’ Again, not to offend, but do you not like checks and balances?
It seems as if you act, by using the term “extraordinary,” that there’s no check on the Court. Yet, you have contradicted this in the very next sentence. There are checks on the Supreme Court, for example, that they have no power to enforce laws. Only the Executive branch has power to execute laws.
Instead, their power comes from the very document that created their institution in the first place: the United States Constitution.
Exactly.
Article III, Section 1, of the Constitution provides that
“[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
From the very beginning, it has been understood that this “judicial Power” includes the power “to declare all acts contrary to the manifest tenor of the Constitution void.” These words come from Federalist No. 78, in which Alexander Hamilton explained that the role of the judiciary “in a limited Constitution” is “to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits of their authority.” Thus,
“where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, . . . it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”
Exactly!
As Hamilton’s words make clear, the doctrine of judicial review – whereby a legislative act that is contrary to the Constitution will be “disregard[ed]” by the courts – ultimately is founded on the concept of popular sovereignty, i.e., rule by the people. Not rule by an aristocracy, or an oligarchy, or a dictator. This is the bedrock principle of American government. Recall Abraham Lincoln’s Gettysburg Address, wherein Lincoln spoke of “government of the people, by the people, and for the people.”
Ironically, Lincoln was a dictator.
What does this mean? Above all, it means that “the people” are the supreme political authority from which all legitimate government derives.
That’s very true. It comes from the consent of the governed.
And, obviously, nobody would reasonably consent to having their Natural Rights usurped. As Locke pointed out, we have government to protect rights. And, unlike Hobbes, Locke said that government can be justly abolished or replaced (which Jefferson reiterated in 1776) if that government fails to protect Natural Rights, or worse yet, acts to infringe upon them. The framers of the Constitution recognized the importance of Rights, which were to be the cornerstone of any civil government, and they recognized that this cornerstone doesn’t end at just those rights enumerated in the Social Contract, which is why it was necessary for the ninth amendment. Because any government that fails to protect Natural Rights, as Locke and Jefferson and countless others argued, can be abolished or replaced. Why? Because as Locke pointed out, the just powers of government are derived from the consent of the governed.
As expressed in the Declaration of Independence, it is the “Right of the People” to “institute” their own government,
“laying its Foundation on such Principles and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”
Exactly!
The Constitution represents the American people’s exercise of this original, natural right to establish their own government. It thus constitutes the nation’s “fundamental law” (in Hamilton’s words) and, by theory and design, takes precedence over all other laws. As Chief Justice John Marshall explained in Marbury v. Madison (1803),
“all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.”
Indeed, the Constitution itself declares (in Article VI) that it is the “supreme Law of the Land.”
It sure does!
Accordingly, where any law – federal, state, or local – conflicts with the requirements of the Constitution, such law is, and must be, void. This is true regardless of the subject matter of the law, or the specific provision of the Constitution it violates, or even how popular the law is with the public.
All true!
I have discussed politics with many people who disagree with this contention, though.
For example, many states have passed laws telling churches who they can and can’t marry. Clearly, this goes against freedom of religion, which is acknowledged in the first amendment. Now, these laws dictating which marriages churches can ordain are very popular, but that doesn’t change the fact that they’re unconstitutional.
Now, if those states want to keep those laws, they have an option: secession. The tenth amendment acknowledges that they have the authority to secede. And, if they do, then can pass as many anti-religion laws as they like. But as long as they choose to remain a part of the United States, they have no authority to pass these anti-religion laws, no matter how popular they may be.
On the other hand, where the Constitution does not address a particular issue, it does not, and cannot, override the ordinary democratic political process.
Again, true.
It is clear, therefore, that the key question is always: What does the Constitution require? As a general proposition, the Constitution requires what the people who ratified it intended it to require. Logically and historically, it can have no other meaning.
Absolutely. This is what Leftists and Rightists simply do not get.
For the very purpose of the Constitution was, and is, to establish the nation’s “fundamental law,” i.e., the principles and rules that govern the lives of the people living in this country.
It is nonsensical to suppose that the American people, in adopting the Constitution (including the amendments), did not know what they were adopting, that is, did not know the principles and rules that they were agreeing would be binding on themselves and their posterity. Of course, from our contemporary perspective, the actual content of these principles and rules (in Hamilton’s words, their “manifest tenor”) may be more or less difficult to determine in any particular case, but the basic point remains the same: The Constitution reflects a specific and concrete set of political commitments made by the American people in their sovereign capacity. These commitments, and only these commitments, represent the supreme law of the land that trumps the ordinary democratic political process.
Uh huh.
From the above discussion, it necessarily follows that a law is “unconstitutional” where, and only where, it conflicts with the specific political commitments made by the American people in the Constitution. For example, the Constitution requires that a member of the House of Representatives be at least 25 years old. See Art. I, Sec. 2. Hence, it would be unconstitutional for Congress or the states to pass a law allowing 21-year-olds to serve in the House, however reasonable such a law might be. If the American people want 21-year-olds to be able to serve in the House, then they must first pass a constitutional amendment (pursuant to Article V of the Constitution) lowering the minimum age from 25 to 21. This would be true even if 100% of the American people were in favor of such a law, or if all fifty states had passed similar laws, or if the minimum age for serving in various European parliaments was also 21. The only consideration that matters is what the Constitution itself requires.
Exactly, exactly, exactly. I wonder why so many people have a hard time understanding this?
Significantly, the Constitution’s organic limitations on the power of Congress and the states apply with just as much force to the courts. As Chief Justice Marshall emphasized in Marbury, “courts, as well as other departments, are bound by that instrument.”
Of course.
Thus, to continue with the above example, it would be equally unconstitutional for the Supreme Court to declare that 21-year-olds should be allowed to serve in the House of Representatives, say, on the grounds that the Constitution’s “due process” and “equal protection” clauses, when interpreted in light of our “evolving” standards of political equality, outweigh the specific age limitations imposed by our long-dead ancestors who were acting in a different historical and social context. After all, if 21-year-olds can vote, get drafted, and are required to pay taxes, shouldn’t they be allowed to serve in the very government making these decisions? Sounds reasonable, perhaps. But it is not constitutional – even if five (or more) justices of the Supreme Court say it is. While this may appear to be an “easy” example, it illustrates the mode of analysis that properly applies to all cases and to all provisions of the Constitution.
Yup, no disagreements there.
Admittedly, certain provisions of the Constitution – especially the afore-mentioned due process and equal protection clauses – are not as self-explanatory as others. Nevertheless, these provisions, no less than the provision imposing a 25-year age limit for service in the House of Representatives, reflect a specific and concrete set of political commitments made by the American people in their sovereign capacity. While it may be difficult in certain cases to determine what these provisions require, it cannot be denied that the American people intended them to require something.
Certainly, there is no historical or philosophical support for the notion that the American people intended these provisions to be mere slogans to be “interpreted” in whatever ways their governmental representatives, including the Supreme Court, desire.
Exactly.
As Hamilton wrote in Federalist No. 78:
“To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; [and] that the representatives of the people are superior to the people themselves.”
Mmm hmm.
In sum, the only valid basis for the Supreme Court (or any other court) to declare a law unconstitutional is where such law conflicts with the actual political commitments made by the American people in the Constitution itself. Anything else constitutes judicial usurpation of the American people’s power to determine their own form of government.
Yep!
If the Constitution, in its present form, is deemed inadequate or incomplete by the American people today, then it is their right – the “Right of the People” – to amend the Constitution in such ways “as to them shall seem most likely to effect their Safety and Happiness.”
Yup!
However, nothing in the Constitution empowers the nine justices of the Supreme Court to make these decisions for the rest of us.
I concur!
To the extent they purport to do so – as the majority clearly did in Lawrence – their actions are illegitimate and unconstitutional.
What the fuck? No it wasn’t! You were doing so well. I’m very disappointed in you.
Clearly, the law was illegitimate and unconstitutional, as I’ve already pointed out above. I already explained the expressed intent of the founders and constitutional framers in their ratification of the ninth amendment.
If you want to deny this intent, then you’re guilty of interpreting the Constitution with modern-day bias.
If you want to deny this intent, then you’re guilty of the very thing you’re preaching against.
I don’t care how much popular opinion may stand in favour of that illegitimate, unconstitutional law, it remains in clear opposition to the Supreme Law of the Land.
This, undoubtedly, is a difficult conclusion for many people to accept. But constitutional democracy is a difficult form of government.
It’s a Constitutional Republic, not a Constitutional Democracy. Again, not to offend, but have you even read the Constitution? Nowhere in it does it declare America a Democracy.
Indeed, the question at the heart of the ongoing battle over President Bush’s Supreme Court nominations is whether the United States will remain a constitutional democracy in the future, or whether we will continue our long, sad slide towards government by judicial decree.
I find it unfortunate that in this last paragraph, you began supporting rule-by-judicial-decree. If the Supreme Court had ruled that case the way you want, they would be validating an unconstitutional law by judicial decree.
Think about it. And do yourself a favour, re-read your article. It has some very good stuff in it. It may just change your mind.© 2007 by Alexander S. Peak
