Judicial review hasn’t been controversial for 200 years

April 15, 2005

University of Chicago law professor Cass Sunstein has a tremendous piece in the LA Times today, arguing among other things, “What we are seeing, for the first time, is a fundamental challenge to the rule of law itself.” Sunstein was referring, of course, to the recent efforts launched by today’s Republican crusaders against the federal judiciary.

Was Sunstein being overdramatic? Hyperbolic, perhaps? I’d argue not. Exhibit A:

Washington Times reporter Stephen Dinan: “You’ve been talking about going after activist judges since at least 1997. The [Terri] Schiavo case gives you a chance to do that, but you’ve recently said you blame Congress for not being zealous in oversight.”

Tom DeLay: “Not zealous. I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that’s nowhere in the Constitution is that Congress didn’t stop them. The reason we had judicial review is because Congress didn’t stop them. The reason we had a right to privacy is because Congress didn’t stop them.” (emphasis added)

Consider the significance here. The Majority Leader of the House of Representatives is lamenting the fact that the federal judiciary has the authority to review laws passed by Congress and, when appropriate, find them unconstitutional. That’s what “judicial review” is. It was established over 200 years ago by Chief Justice John Marsall in a little case called Marbury v. Madison. This is part and parcel of the American system of government — and Tom DeLay isn’t shy about expressing his disappointment about it.

Also note that he isn’t the only one.

[Michael Schwartz, the longtime right-wing operative who now serves as Sen. Coburn’s chief of staff, said as] long as the Supreme Court purports to “grade the papers of Congress” — in other words, to evaluate its laws — “it is counter to the very basis of this republic.” Thus, until America throws out the principle of judicial review, “it is a sick and sad joke to claim we have a Constitution.”

I can appreciate that this is a volatile political time, and I’m hardly a neutral observer, but it’s plainly obvious that we’re dealing with a Republican majority keeps getting crazier. Just when it seems the right can’t get any less reasonable, guys like DeLay manage to kick things up a notch.

I mean, seriously. Tom DeLay is not just some guy in a bar ranting and raving. He’s the leading Republican in the House denouncing basic American principles — church-state separation, judicial review, privacy rights — in a newspaper article. Simultaneously, we have a Senate staffer insisting, in public, that it’s a “sick and sad joke to claim we have a Constitution” because the Supreme Court has the power to strike down unconstitutional laws passed by Congress.

Few seem to have batted an eye over these developments. No one, for example, expects that Senate staffer to lose his job due to his publicly-announced insanity. Everyone’s read DeLay’s remarks about judicial review, but it’s just another day of The Hammer’s madness, hardly different from the day before.

It’s come to a point in which we’re not even surprised anymore when leading government officials denounce the basic principles of our democracy and the rule of law. It’s a one-day story — if there’s even a story at all.

Bush’s America is an increasingly scary place.

The reason the judiciary has been able to impose a separation of church and state that’s nowhere in the Constitution…

Huh?! WTF?! How come no one else is talking about this? Or am I missing something here?

  • WTF —

    Hey Carpetbaggger,

    I know that you live and breathe the “separation of church and state” thing. But PLEASE quote the U.S. Constitution for the sake of the ignoramuses like Tom DeLay.

    In the Bill of Rights, Amendment I reads:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

  • I would highly recommend (in all respects, not just in those relevant to this particular issue) that people refamiliarize themselves with the documents that ushered our Constitution into being. These documents are no longer cherished by our citizenry as they once were and still should be. I, of course, refer to the Federalist Papers. Alexander Hamilton, John Jay, and James Madison -three of our most able founding fathers – came together for one purpose: to advocate for the adoption of this new Constitution. In its words we can rediscover our Constitution’s heritage, which now seems in danger of being lain atop the current GOP bonfire.

    With regard to this particular issue, I point to Federalist Paper #48, ably titled “These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other.” In that paper, James Madison wrote: “I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.” Quoting from Thomas Jefferson’s “Notes on the State of Virginia,” Madison obviously concurs with the statement: “An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”

    In Federalist #78, Hamilton writes: “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.”

    I wish the GOP would spend more time studying our history before they pretend that history is on their side.

  • That “grade the papers” line reminds me of the complaint about the UN (IIRC) to the effect that the U.S. “doesn’t need a permission slip” to go to war.

  • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.â€?

    Yeah, so what? The words “separation of church and state” don’t appear anywhere in that quote. So what’s the point? You are supporting DeLay’s assertion.

    when leading government officials denounce the basic principles of our democracy and the rule of law

    What in the world are you talking about? The basic principle of “democracy” is that an elected, representative government writes the legislation which becomes “the rule of law,” not some judge. And I find it humorous that those who denounce some Constitutional rights—e.g., the second amendment—are so quick to use others in support of their arguments, when it suits them.

    The Constitution needs to be interpreted strictly—as intended by the framers—or it needs to be thrown out. This moral relativist—”but it’s a living document”—approach is ignorant. It’s written in plain english, after all.

  • questioning_mkb: Um, so who does the interpreting? The whole point of judicial review is to ensure that the laws legislators enact are in keeping with the spirit of the Constitution (add ‘as intended by the Framers’ if you like…I’m happy to grant you originalism to make the point). Let’s assume Democrats now controlled both houses of Congress: Would you always trust them to enact laws in such a manner?

    The Framers weren’t dumb guys…they saw the necessity of maintaining a separate branch of government to curtail legislative overreach, whoever happens to control the House and Senate at any given time. Even though you may get stung now and then when the judiciary strikes down a law you happen to dig, on average, you have reasonable assurance that the basic set of rights codified in the Constitution won’t be trampled on by the current majority political party.

  • Carpetbagger – a couple of historical corrections. First, judicial review was very nearly discarded when John Marshall attempted to apply it against Andrew Jackson and to force the state of Georgia to abide by a Native American treaty that Georgians found irritating. Jackson’s response was simple: “John Marshall has made his decision; now let him enforce it.”

    Second, judicial review cuts both ways – it’s not some bastion for the Constitution. Indeed, Dred Scott was a most egregious use of judicial review to invalidate Congressional actions and to declare black men forever unequal…and to pave the way for the Civil War.

    Let’s not grow to worried about the institution of judicial review (which is a bit more complex than overruling Congressional acts – more often, ambiguous acts are “narrowed” or “broadened” rather than overruled); it’s not really possible to review the law without engaging in it.

    As George put it: the question is who gets to do the interpreting?

    And consider: since Dems only appointed 40% of the judges sitting in the judiciary now, and after 4 years, Reps may have made about 80-85% of the appointments – given that, do you really want a strong judiciary overruling Congress or the states? Could be that New York/California will give better protections than Congress ever would…

    Just some thoughts. This is terrain that has been trod – let’s not get alarmed, but only look into the price (and the price of going the way that Bush/DeLay are pushing is pretty huge for most folks).

  • “Yeah, so what? The words “separation of church and stateâ€? don’t appear anywhere in that quote. So what’s the point? You are supporting DeLay’s assertion.”

    Actually, “questioning_mkb” makes an important point: if you’re going to discuss this issue publicly, you should know the Radical Right’s arguments. What seems obvious to us–that the Establishment and Free Exercise clauses intended to create separation of church and state–isn’t a given to the Radical Right. They read the clauses as solely 1) preventing the govt. from establishing an OFFICIAL state religion (or, more to the point, officially favoring a particular Christian denomination) and 2) prohibiting the govt from stopping Christians from practicing their religion in any way (and in any place) they choose. They contend, for example, that since America is a “Christian nation,” they have the Constitutional right to assert their religion in “the public square” and in schools, as long as they don’t force others to convert. They also contend that since the words “separation of church and state” don’t literally appear in the Constitution, the whole concept is a fraud.

    The response that makes the most sense is that the phrase “a right to a fair trial” doesn’t appear in the Constitution either, but it’s accepted as an accurate expression of a basic Constitutional principle. This applies equally to the term “separation of church and state.” As for the intent behind the two clauses: History is very much on our side. Jefferson and Madison’s work on Virginia’s 1786 statute of religious freedom demonstrates their belief in Separation; their subsequent statements and actions (including Pres. Jefferson’s comment in a letter to Baptists that he supported maintaining a wall between church and state) were definitive enough to have allowed judges to consistently support Separation.

    The “Christian nation’ concept is central to the Radical Right’s attempts to undermine Separation. I’d suggest, if anyone ever brings that nonsense up to you, that you point out that the Constitution–the only Founders’ document that matters when it comes to setting up our nation of laws–intentionally doesn’t mention God or Christianity once. Rather, it says that our rights come from the people. It also specifically prohibits making religion a qualification for running for office–which means the Founders were fine with atheists holding office. All this indicates pretty definitively that they didn’t see the US as a “Christian nation,” even if most of them were Christians themselves.

  • As a non-American maybe I should abstain from commenting. But I would remind you that democracy is all about consensus finding. No Constitution is perfect, no political system solves every single problem. But all works well if consensus can be found. The right to make laws and the right to review them are instruments for consensus building. Checks and balances are important to assist in this task, but they do not guarantee success. The problem in present day US is that the search for consensus seems to have become less interesting for some people. American society is becoming dangerously polarized. I don’t know whether you are not drifting into a Bolshevik v. Menshvik type of situation, where the Bolsheviks (guess who they are…) threaten to destroy the other party. This threat may require a grassroots reaction, and I am not sure whether Americans are giving it enough thought.

  • questioning,

    The Senate exists alongside the House to ensure that more populous states don’t trample on the rights of the less populous ones. In that same frame, judicial review exists to ensure that laws don’t allow the tyranny of the majority based on the original intent of the Constitution.

  • More I think about it, I’m not surprised. Remember, this is a guy who puts the Contract with America on the same pedestal as Magna Carta.

  • Tom Delay’s comment about judicial review is a perfect example of radicalism masking as conservatism. He pretends that judicial review is something from the 20th century, so that calling for its end is seen as reverting to some past state, while in reality, as you’ve noted, judicial review has been established since for quite some time, certainly by the second decade of the 19th century.

    I think it is important that we start calling Republicans radicals rather than conservatives.

  • The Delay/Republican approach to the constitution is exactly the same approach the conservative right used in revising the bible.
    The new version is the English Standard Version, its publishers, Crossway say that it is a literal(“word for word”) translation. They state that their version is a literal translation of the King James Version of the bible. What I get in reviewing the two is nothing a “word for word” translation, it appears that the conservatives wrote the bible to read the way they wanted it to read. To me it doesnt seem close to the KJV in some places.
    The followers of the religious right are trying to impose the methods used in the religion on the interpretation of the constitution. Forcing the thinking of the religious right on the whole of the US.

  • …are in keeping with the spirit of the Constitution…

    that’s the relativism of which i spoke. the constitution is written in plain english. there is no need to consider the “spirit” of anything; you just read it and do what it says (or don’t do what it says not to do). seems pretty simple to me.

    …which means the Founders were fine with atheists holding office.

    actually, they feared members of one particular religion or denomination would be favored, as was the case in great britain at the time, and also the reason for the establishment clause. as an aside, there was no atheistic ideology when the founding documents were written—”atheism” is a construction of nineteenth and twentieth century philosophers.

    But I would remind you that democracy is all about consensus finding.

    more relativism. i just don’t see what’s so difficult. “congress shall make no law…” no need for debate. no need for consensus. it’s almost as if some people think the constitution is somehow unclear and we need to work out the details, but everything in the document is straightforward, without exception.

    …but it’s accepted as an accurate expression of a basic Constitutional principle.

    owning slaves was “accepted as an accurate expression of a basic constitutional principle.” up through the 1960s, democrats fought tooth and nail to assure that segregation continued to be “accepted as an accurate expression of a basic constitutional principle.” so, i assume you agree with these?

  • “Consensus building” is needed when interpretation is required. If you say: “This wall must be painted white”, is pretty straightforward. But if you say: “This wall must be painted of a pleasant colour”, you must first reach a consensus on what a “pleasant colour” is.

  • Good point, Albatroz! The fact is, while the Constitution may be crystal clear to questioning_mkb, it is in fact written in late 18th century English, gets awfully vague at times (in part because of the drawn-out process of consensus-finding and compromise that got it written and approved), and required some interpretation at its birth, to say nothing of over 20 decades later!

    Donzelion – re: the near-discarding of judicial review: The Jackson quote, which has been refered to by a number of conservative commentators recently, seems to be questionable at best, though it does reflect his attitude. The court found that Georgia didn’t have the right to kick the Cherokees off their land, since only the federal government had jurisdiction over these matters. Indeed, the forced removal of most of the Cherokee Nation, at a cost of several thousand lives, was accomplished through the illict Treaty of New Echota, between the federal government and (ilicit representatives of) the Cherokee Nation (the signatories were a minority faction violating Cherokee law, and none of them were actual elected tribal officials). In other words, the actual removal doesn’t seem to have contradicted that specific ruling, though Jackson used this dispute, and the threat of action by Georgia, to push for treaty-signing. The use of this example by some as an act to be emulated boggles my mind – even if one holds that it shows that judicial review can be challenged without bringing down the nation, as Ann Coulter did, the specific circumstances are such a disgraceful episode in our history that it would seem to be the last thing one would want to bring up.

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