Jonathan Bunch informs me that Dissent magazine has an interesting debate between three prominent constitutional scholars that they’ve made available on the web for free. Mark Tushnet, a contributor to Jack Balkin’s blog and con law prof at Georgetown, takes the position that judicial review – the authority of the Supreme Court to invalidate laws they deem to be unconstitutional – should be gotten rid of. This is a highly surprising position for a prominent liberal legal scholar to take. You can see his initial essay on the subject here. Lawrence Tribe of Harvard replies here. Jeremy Waldron of Columbia replies here. And Tushnet responds again. As much as I respect Mark Tushnet as a scholar, I must disagree with him strongly on this one, though I frankly don’t think that either Tribe nor Waldron made the necessary arguments for why judicial review is not only important but indispensible in maintaining liberty.
The strongest argument that can be made in favor of judicial review was made in the Federalist Papers by Alexander Hamilton. In #78 he offered two primary arguments in favor of judicial review. First, that without judicial review the legislature is free to violate the Constitution at their whim with no one able to stop them from doing so, effectively subordinating the Constitution itself, which he regards as the truest expression of the will of the people, to the whims of those to whom the Constitution intends to give strictly limited authority:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid…
But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
Second, Hamilton argues that judicial review is necessary to prevent the people themselves from clamoring for laws which violate the rights of others, perhaps under the leadership of men who seek their own power by getting the mob fired up into a fit of anger or fear:
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.
This is the reason why judges were given lifetime appointments, to secure their independence from the ebb and flow of public opinion. The founders reasoned, and accurately so, that the people are prone to being manipulated in times of fear by leaders who seek greater authority and power. History demonstrates this fact as clearly as it demonstrates anything. And they viewed the courts, made as immune from public pressure (i.e. “democracy”) as possible, as an important bulwark against the usurpation of power in this manner.
This is expressly anti-democratic, but also expressly pro-liberty, which comes as something of a shock to most Americans, who have been trained to think that democracy and liberty are virtual synonyms of each other. But the Founders understood otherwise. They understood that a democracy can violate the rights of individuals as easily as a dictator or a king, and indeed that it may be more dangerous when such violations are sanctioned by vote rather than by imperial whim for the simple reason that we tend to view all judgements reached democratically as intrinsically more valid than judgements reached by an individual.
But the founders knew that this was folly, that a majority may be every bit as contemptuous of the rights of others as any satrap. Thus, they set up a system that put liberty first, that placed limits on what a government – i.e. a majority – may do and not do. And they gave to the courts the authority to insure that those limits were followed. The fact that they have failed to do so in so many instances is tragic, but I would argue that where the courts have failed to impose those limitations it has failed precisely because they have failed to take seriously the role that the founders wanted for them, the role of protecting liberty from democracy.
The solution to that is not to do away with the only check we still do have against such intrusions. The solution, I would argue, is a far more activist court (in the generic sense), one that does away with the absurd “presumption of constiutionality” that arose out of New Deal era jurisprudence and takes seriously its primary duty, to enforce the constitutional limits on legislative and executive authority. And they should do this not only in terms of enforcing the Bill of Rights, but in enforcing the limitations in the “bill of powers”. They should do so by, for example, rethinking the endless abstraction which has brought us to a point where the interstate commerce clause can somehow be read as giving Congress the authority to regulate actions that are neither interstate nor commerce. I plan to examine the issue of abstraction in constitutional law in another essay soon.