A Brief History Of Judicial Review

An Essay on the History and Impact of Judicial Review By definition, judicial review is an anti-democratic doctrine. Why is it that an unelected judiciary can review and make void laws passed by a democratically elected legislature and executive office? The answer requires analysis of our national history, and sheds light on some fallacious popular beliefs about our system of government. It is notable that when the colonies declared independence from England, they did so as sovereign states. The best analogy that can be made would be to the modern day United Nations – multiple sovereign nations who hold a loose alliance. Furthermore, the current day problems with the UN (a lack of ability to force member nations to do much of anything, as well as a lack of any significant authority or ability to enforce regulation) were also found within the Articles of Confederation, which was the earliest incantation of governance the states agreed to. Understandably, the colonies had associated tyranny with a monarch (for our purposes analogous with the Executive Branch) due to their less than amiable relationship with the British crown. Resultantly, when they created their first form of governance they omitted the executive branch completely, only establishing a Congress with members from each state. Regrettably, they found several problems with this new form of governmental oversight. While each state was able to retain their sovereignty, they found that a lack of structure between the states (the ability to enforce taxation, etc) was an immense drawback, much like the previously mentioned issues with the present day UN. They also found, much to their disturbance, that it was not only the Executive Branch that could be tyrannical. Debtors were relieved of burdens with no thought to their creditors, laws were passed in the interest of individual people, and people became disenfranchised due to political alliances. Many of these issues lead to the Constitutional Convention, which eventually lead to our current federal government. So what solution did the Framers find to alleviate these diverse concerns? The answer is the federal government, and the balance of powers established by the three branches created in it. After the disastrous experience with the Articles of Confederation, the Framers simply began to realize that the elected representatives often ignore the values that “We the People” care about. See Bruce Ackerman, We the People: Foundations 3-33 (1991). Their reasoning for creating a strong, multi-branch federal government was that by having more than one branch of government equal in power, along with delineated checks and balances in the Constitution, the natural order of liberty would be preserved. Secondly, they could eliminate those pesky taxation and governance problems that plagued the Articles of Confederation. In effect, the Framers became disillusioned with the idea of a pure democracy, for the people, by the people. The purpose of the Judicial Branch in this new capacity was to be the steady guiding hand, ensuring that neither of the other two branches fractured the cohesive set of principles set forth in the Constitution. It was thought that the Legislative and Executive Branches simply did not have the same priorities as the Judiciary. The Legislative and Executive Branches are elected politicians and somewhat hostage to their constituents.

Furthermore, they tend to focus on expedience and pragmatism when they enact laws, and often do not have a principle-centric approach. In contrast, an unelected Court loyal only to the Constitution (and therefore limited by it as well) would be a check on its somewhat fickle federal brethren. The results of this can be seen in landmark cases throughout the history of our country, from Marbury v. Madison to Boumediene v. Bush. But what are citizens to do if the Court oversteps its constitutional bounds? There are several reactions, some more effective than others. First is the Amendment process, which, while difficult, has been used four times to overcome Supreme Court decisions. Second is court packing – a term for electing politicians that will appoint judges that are more in line with the people. The third is popular dissent, which essentially revolves around individual Justices changing their opinions as a result of a shifting value set within the American people. Lastly is simply impeachment. Like other officials, judges can be impeached if they do something so strongly at odds with the will of the people. While most scholars believe that judicial review is necessary, some argue that the courts have simply gone too far in their activism, and are essentially becoming just as bad as the two branches that they are attempting to check. From a policy standpoint, many point to the argument regarding the role of the Court to be an upholder of the basic principles delineated in the Constitution as a justification for limited judicial activism, not independent law making. Others, like our soon to be elected President, see the court system as a tool for social change. It is in part this tension that produces the bitter nomination battles for new Supreme Court Justices, and the political hand wringing that never fails to accompany it. Regardless of the extent that judicial review is carried out, it is an extremely important aspect of our federal government; it allowed the Framers to feel secure that neither the Legislative or Executive branches, both of which they had disastrous experiences with, would be held unaccountable for actions contrary to our written Constitution.