Update [2005-4-17 16:27:19 by Armando]: From the diaries by Armando. Law Sunday.
"There is no liberty, if the power of judging be not separated from the legislative and executive powers." -Montesquieu, Spirit of Laws
As a part of their increasingly fervent and shrill jihad against the federal courts, wingers have resorted to the canard that judicial review has no place in our constitutional system and Marbury v. Madison was wrongly decided. First, the "argument" popped up on winger talk radio; later it was trotted out on JesusVision, courtesy of Tony Perkins. Various legal scholars, from both the right and the left, have attacked Marbury (and, by extension, judicial review) for years.
The thing is, they're all wrong, and the historical evidence isn't mixed. It's clear: judicial review isn't just an appropriate part of our government; it was critical to the system the Founders designed.
In other words, all you originalists out there should really love judicial review. To understand why, we have to understand the rapid metamorphasis of Whig political theory in the aftermath of the American Revolution.
In the run-up to the Revolution, the dispute between the American Whigs and the English Crown was much more subtle than many initially imagine. In the 1760s, both parties agreed on what was at the time a fundamental postulate of political theory: the idea of "mixed government." In brief, the theory of mixed government held that 1) there were three basic types of government: monarchy, aristocracy, and democracy, and that 2) liberty and good government depended on an exact counterpoise of the three types of government. Thus the split between the King, the Lords, and the Commons in Parliament.
Initially, then, the Whigs' complaint with England was merely that the first two arms of the colonies' "mixed government" had run roughshod over the democratic element. In the early development of truly American political thought, "We the People" were equated completely with our representatives in the "People's House." Prior to the revolution, then, the "radical Whigs" didn't have in mind the constitutional republic that would be created in 1787. Instead, they sought to throw off the dual yokes of monarchy and aristocracy, leaving the state in the hands of the democratic arm of government.
So far so good for DeLay, Inc., and if history ended there, he might even have a colorable argument. Fortunately for the rest of America, however, history didn't stop there. The Framers' experience with post-Revolutionary America made it clear to them that the People were more than just their representatives and that liberty could not be guaranteed simply by instituting democracy. The leaders of the Revolution began to realize that the popular assemblies in the various states were, in many cases, not much of an improvement over Parliament. As Alexander Hamilton put it, "The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves."
The Framers thus arrived at an intellectual dilemma. They had long been clear, in theory, that governmental power and authority must flow from "the People." But they had long assumed that popular assemblies were adequate proxies for the People, a conceit that had been shattered by the reality of life in an independent America. How to solve the problem? We know the answer: the Constitution, but time has obscured how radical and elegant the Framers' design was from the standpoint of political theory. The idea, arrived at more through fits and starts and trial and error than by conscious design, was that the People always retained supreme, sovereign power, and that the act of constitution-making in which the Federalists were engaged (where the charter of a new government would be presented directly to the People for ratification) was the only legitimate way to create a government that would protect the liberty of the People.
What does any of this have to do with judicial review? A great deal, as it turns out. Because of the Framers' newfound mistrust of legislatures (even the popular assemblies that had once been thought of as a perfect proxy for the People themselves), they had to devise a mechanism to ensure that the People's will (which was always to be superior to the will of our elected representatives) remained supreme. Judicial review was that mechanism. For those who would argue that the Framers never imagined that judicial review would worm its way into the American system of government, I -- and the Founders -- beg to differ:
As George Mason argued, it was the federal judges who were given the "opportunity of remonstrating against projected encroachments on the people."
James Madison, long the darling of originalists, wanted to go even further than simple judicial review. He feared that because judges would limit themselves to invalidating only unconstitutional laws, other laws, "however unjust, oppressive or pernicious" would be upheld. Thus, Madison wanted the Supreme Court to be joined with the President in a Council of Revision that could strike down any law the Council deemed "unwise or unjust."
Oliver Ellsworth argued that "if the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, secure to their impartiality, are to be made independent, will declare it to be void."
The most eloquent and well-known Founder's argument in favor of judicial review, however, is that of Alexander Hamilton, in Federalist No. 78. His words are just as forceful today as they were in the eighteenth century and very much on point:
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.
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. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
To make a long story very, very short: the American system of government is premised on the notion that the People themselves -- not any branch of their government -- are sovereign. The Framers knew, from experience, that legislatures could become just as despotic as kings and tyrants and carefully devised a system of government designed to jealously guard the People's power. And it was the courts, through the power of judicial review, that were created to ensure that the intention of the People, and not their agents, was always supreme.
It is therefore not surprising that today's would-be tyrants are lashing out so forcefully at the federal courts, the one branch of government that (by design) stands in their way. We must win this fight. Quite literally, the great experiment that is America hangs in the balance.