Declaration of Independence
The judicial review found its origins within the Declaration of Independence, which declared the colonies of North America, to be “free and independent states.” (“Declaration of Independence:” par. 31). This declaration has been at the foundation of the philosophical, political, and ideological battle between those advocating a very broad construction of the limits, and strict construction of powers within the Constitution and vice versa.
Before the ratification of the Constitution, the Articles of Confederation document provided the legal basis of the thirteen founding colonies to declare themselves individual sovereign states but to agree to a perpetual confederation. The word confederation is important as it denotes an alliance, nor the formation of a single entity. Within the Articles of Confederation, each State retained full sovereignty over all matters not “expressly delegated” to the United States (“Transcript of Articles of Confederation 1777” par.3)
At the Philadelphia convention, the Virginia delegates were opposed to the new Constitution, fearing that it promoted federalism. Governor Edmund Randolph, a pro-ratification delegate, was forced into making concessions to Patric Henry. These concessions consisted of the phrase “expressly delegated” (“Transcript of Articles of Confederation 1777″ par.3), that appeared in the Articles of Confederation, to be written into the Constitution to limit the powers of the new Congress. Further, they wrote into their ratification statement that they ”retained the right to withdraw from the new government, if the new government exceeded its delegated powers” (“Ordinance of Secession 1861” par. 1). As such, this understanding formed part of the State of Virginia’s ratification in 1788. As all the individual states were equals, Virginia’s conditions would apply to each state.
The ratification of the Constitution created the US Supreme Court. Article III created the Judicial Branch. Section 1 created the Judicial Powers. Section 2 assigned “original jurisdiction” over the individual States. (“The United States Constitution” Article III). Judicial Review is the lens through which all new laws created by Congress and Senate, are examined for their Constitutionality by the sitting Justices of the Supreme Court. If a new law created by the legislative branch is deemed to be unconstitutional, that law will be struck down. The Executive branch, has with the expanding powers of the Presidency, taken to creating Bills to put before the legislative branch for their approval, and creation of a new law therefrom. The current high profile example of this is Obama’s “Healthcare Bill” which was eventually passed by the legislative branch and is now being examined for its constitutionality by the Supreme Court.
The Intentions of Judicial Review
Judicial Review makes the Supreme Court the de facto lawmaker in the United States today through their monopoly control of the interpretation of the US Constitution. Thus, effectively, the system of checks and balances envisaged by the writers of the Constitution is abrogated. The Supreme Court, through Judicial Review, has widened its powers of interpretation through the phrase “substantive due process” (“The United States Constitution” Amendment 14). This allows the Supreme Court to define through Judicial Review, what rights the Constitution confers or protects.
This has created huge controversies that relate to the interpretations assigned to the Constitution. The decisions of the Justices, while sitting on the Supreme Court bench, which is for life, barring impeachment, can carry immense political repercussions. There are several styles of interpretation that are employed by the Justices: “textualists, intentionalists, pragmatists, and natural law theorists” (“Theories of Constitutional Interpretation” Introduction). Gutzman states that the Jeffersonian interpretation, which is strict constructionism, argues for sovereign states.
“Most history and legal textbooks say that Jefferson and Madison invented the idea of state sovereignty. But… they only argued for what the founders had already understood to be true about the sovereign states from the beginning, even if some of the founders (the nationalist and monarchist wings) wanted to change that understanding.” (73).
Through their interpretations via the Judicial Review process, the Justices can, and have, effectively re-written the Constitution. Gutzman writes that, “Justice Marshall, in McCulloch v Maryland, wrote, that the Articles of Confederation had specified that Congress had only the powers it was expressly delegated, that the Constitution included no such language, so no such principle applied to it.” (91).
This interpretation of the Constitution, by Justice Marshall, reduced the power assigned to individuals and the States, and arrogated it to the Supreme Court, thus greatly increasing the power and influence wielded by the Court. This approach is now usually referred to as a living constitution, which requires ongoing interpretation to evolve with society and the ethics of the times.
I would argue that this interpretation is open to serious challenges and arguments. Under Amendment 9 – Construction of Constitution. Ratified 12/15/1791 “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (“The United States Constitution” Amendment 9). The further argument can be made with Amendment 10 – Powers of the States and People. Ratified 12/15/1791. Amendment 10 “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (“The United States Constitution” Amendment 10).
Taken together, the Amendments provide for the limitation of central government power in favor of retaining the rights of the States and further, the individual. This would constitute a textualist interpretation.
The consequences of Judicial Review
Judicial Review has an ulterior purpose. The oft-quoted purpose, to provide a system of checks and balances to government power, are simply the assertions of apologists and technocrats. The purpose of the Judicial Review is to legitimize and validate the expansion of central government power. De Jouvenel states, “in the history of political thought, a concept originally designed to limit and check state power, was turned by the state into an instrument that gave it legitimacy” (27).
So it is with Judicial Review. The history of the United States demonstrates the veracity of De Jouvenel’s observation. The constant encroachment of the central government over the rights of the States and individuals has been extraordinary.
The United States was birthed in revolution and the breaking of English law. That the revolution was successful, allowed the individuals to create a new law. That law, the Constitution, was designed to accomplish two tasks. The first was to create a Republic, where the Rule of Law is observed. The second was to create a federal system of government. These two objectives can be accomplished, but they carry certain contradictions within themselves. It is largely these contradictions that Judicial Review is supposed to resolve. I would argue that federalism is trumping republicanism, largely due to Judicial Review.
Works Cited
De Jouvenel, Bertrand. On Power. London and New York: Hutchinson 1948. Print.
Gutzman, Kevin. The Politically Incorrect Guide to the Constitution. Massachusetts, Washington D.C.: Regnery Publishing 2007. Print.
Ordinance of Secession 1861. Web.
The Declaration of Independence 1776. Web.
Theories of Constitutional Interpretation n.d. Web.
The United States Constitution n.d. Web.
Transcript of Articles of Confederation 1777. Web.