Criticism of Judicial Review
Although judicial review has now become an established part of constitutional law in the United States, there are some who disagree with the doctrine.
At the Constitutional Convention, neither proponents nor opponents of judicial review disputed that any government based on a written constitution requires some mechanism to prevent laws that violate that constitution from being made and enforced. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government (the British doctrine of parliamentary sovereignty). The delegates at the Convention differed with respect to the question of whether Congress or the judiciary should make determinations regarding constitutionality of statutes. Hamilton addressed this in Federalist No. 78, in which he explained the reasons that the federal judiciary has the role of reviewing the constitutionality of statutes:
| “ | If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. | ” |
Since the adoption of the Constitution, some have argued that the power of judicial review gives the courts the ability to impose their own views of the law, without an adequate check from any other branch of government. Robert Yates, a delegate to the Constitutional Convention from New York, argued during the ratification process in the Anti-Federalist Papers that the courts would use the power of judicial review loosely to impose their views about the "spirit" of the Constitution:
| “ | n their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. | ” |
In 1820, Thomas Jefferson expressed his deep reservations about the doctrine of judicial review:
| “ | You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. | ” |
In 1861, Abraham Lincoln touched upon the same subject, during his first inaugural address:
| “ | he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes. | ” |
Lincoln was alluding here to the case of Dred Scott v. Sandford, in which the Court had struck down a federal statute for the first time since Marbury v. Madison.
It has been argued that the judiciary is not the only branch of government that may interpret the meaning of the Constitution. Article VI requires federal and state officeholders to be bound "by Oath or Affirmation, to support this Constitution." It has been argued that such officials may follow their own interpretations of the Constitution, at least until those interpretations have been tested in court.
Some have argued that judicial review is unconstitutional. This is generally based on two grounds. First, the power of judicial review is not expressly delegated to the courts in the Constitution. The Tenth Amendment reserves to the states (or to the people) those powers not delegated to the federal government. The second argument is that the states alone have the power to ratify changes to the "supreme law" (the U.S. Constitution), and that the states should play some role in interpreting its meaning. Under this theory, allowing only federal courts to definitively conduct judicial review of federal law allows the national government to interpret its own restrictions as it sees fit, with no meaningful input from the ratifying power.
Read more about this topic: Judicial Review In The United States
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