- Jurisdiction
- Other
When I was in college many years ago studying political science at one of the best universities in the world at the time for this subject, I was attending a lecture for class about the Constitution. As I was sitting in an auditorium filled with students (well, "filled" might be too strong a word), the professor said something that didn't sit right with me. As if prefacing a mystery, he slowly said "The Constitution is silent about judicial review" and followed it with a pause for dramatic effect before bringing up Federalist No. 78 (which I will get back to shortly). I quickly looked around the auditorium and couldn't find anyone particularly puzzled by his statement, but to me this didn't make sense because of the Tenth Amendment states "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." When I got home I opened up my copy of the U.S. Constitution and the very first line [after the preamble] was Article I, Section 1 which states "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." It does not say "legislative power" or "most legislative power", it says "All legislative power."
So I wondered how the sCOTUS could get away with legislating from the bench by striking down the Judiciary Act of 1789 or any number of cases it later exercised judicial review. After all, Federalist No. 78 was little more than an anonymous essay Alexander Hamilton submitted to two New York newspapers under the pseudonym "Publius" shortly before New York voted whether or not to ratify the Constitution. Moreover, James Madison even wrote many years later that the Federalist Papers didn't go as planned as he, Alexander Hamilton and John Jay had originally agreed to proof read each others' articles before submitting them for publication before quickly finding out they didn't have time to do that. Certainly by the time Hamilton got to Federalist No. 78 no one was proofing Hamilton's draft, and more importantly, Madison also admitted many years later that he either had not or no longer agreed with certain opinions written in that body of work. Basically Federalist No. 78 was nothing more than an opinion or op-ed article.
So what gives the supreme Court the power to not only strike down laws (a legislative act) but to change or determine the meaning of a law beyond what is reasonably discernible form its text (another legislative act)? For example, what gave the sCOTUS the right to decide speech meant anything other than a spoken or written world or a thought? After all, the only widely distributed dictionary at the time was one of the editions of Samuel Johnson's Dictionary of the English Language which only included such definitions. Nonetheless, somehow the supreme Court was able to rule that speech would now include armbands (such as those worn by 13-year old students in school protesting the Vietnam War). It would later use artistic license for pornography, money, and other things it deemed as free speech despite the context of the definition of the word. This is a dangerous power because the first use of judicial review starts to build precedent where additional artistic license is exercised.
Even the fist definition I found online thirty seconds ago does not define the word speech to include these abstract ideas (Definition of SPEECH). Other examples of judicial review drastically changed our government forever. I was taught in college that the supreme Court didn't use judicial review again after Marbury v. Madison (1803) for approximately 50 years, but that clearly was not true. When "Maryland imposed a tax on the Bank of the United States and questioned the federal government's ability to grant charters without explicit constitutional sanction," the Court ruled in McCulloch v. Maryland (1819) that the "Supreme Court held that the tax unconstitutionally interfered with federal supremacy and ruled that the Constitution gives the federal government certain implied powers" (Supreme Court Landmarks). So much for the Tenth Amendment! The court would go on to also use judicial review to rubber stamp legislation that violated separation of powers doctrine. For example, the president would later lose his ability to fire certain executive bureaucrats. It would also rubber stamp the ability for the executive branch to violate Article I, Section 1. As one University of Virginia law professor told an assembly of law students, federal laws are created one of three ways in this country by the legislative branch creating statutes, by the executive creating regulations, and by the judiciary's use of judicial review & stare decisis. What happened to Article I, Section 1? There was never an amendment ratified to change it. Why would we fundamentally allow the Constitution to change so drastically through circumvention rather than by its prescribed remedy for revision?
As long as we are using the rules of the English Language, the Tenth Amendment, combined with Article I, Section I and Article V, prohibits the use of judicial review. Whenever we feel a need to add or otherwise alter the Constitution we can have 3/4ths of the states ratify a constitutional amendment. The flow chart of such a concept is so simple, but it appears to have been ignored at virtually every turn. Why would we ever need to polarize the discussion surrounding judicial review at all? If people felt that strongly about it, we could have merely passed a constitutional amendment.
We also know that it was not the founders' intention to grant the sCOTUS judicial review. James Madison wrote Thomas Jefferson on October 24, 1787 less than two months after drafting the Constitution (which was ratified the following summer), and referring to judicial review as "a negative", he said the delegates at the Constitutional Convention discussed giving this power to the judiciary but decided against it for three reasons. First, they felt the time to address the constitutionality of a law was before it became one and could cause injury. Second, he pointed out that it was not a practical check on states [or other government departments for that matter] because not everyone could afford to fight a case all the way to the supreme Court. Third, he said the delegates feared that states might succeed from the union if the Court ever attempted to exercise such power. I will add to his list by remind everyone that, with few exceptions, the supreme Court of the United States is an appellate court only, and a case must be ripe before the court will hear it, and even then, the Court can decide not to hear it, and they do not have to explain to the American people why. All this means that it is a ridiculous notion to think judicial review is a viable step in the checks and balances process, especially when all three branches of government are walking in lock step for political or other reasons. Again, if the founders intended the judiciary to decide such matters with "a negative", why did they not grant the Court a negative on the legislature before a bill becomes law as Thomas Jefferson et al. had advocated (see his letter to Madison dated October 24, 1787).
Thomas Jefferson knew something was afoul years before the court appeared to have usurped Article I, Section 1 power in Marbury v. Madison (1803) when he wrote his cousin/former attorney general/former secretary of state Edmund Randolph on August 18, 1799. In his letter Jefferson stated that it appeared to him that the judiciary was trying to usher in English common law under the radar. That's rather prophetic considering what happened four years later, don't you think? I freely admit that the states were fully within their right to adopt any provisions of English common law that which so long as they did not conflict with the Constitution because of the Tenth Amendment, but that same amendment obviously precludes such usage at the federal level given the express words of the Constitution (again, so long as we agree to use the rules of the English Language). Moreover, it's ridiculous to assume judicial review was implied as we certainly did not even come close to adopting all provisions of English common law. So how did we decided which ones to use? We didn't. The matter had been settled at the Constitutional Convention.
I am not a lawyer, but again, I ask you is there any legal justification for the supreme Court, or any federal court, to use judicial review to alter the constitution or change either federal or state law? After all, the only exception to the legislature's passage of laws in the constitution is the presidential veto. No such judicial veto was ever mentioned. Moreover, a judicial veto is a much more powerful veto than the one the president yields. It allows for, not only for bills to be rejected, but these are statutes passed by representatives, senators and (in most cases) the president. In other words, a simple majority of justices (essentially appointed for life) can override 536 people and the American people who hold them accountable (even when justices recuse themselves). Correct me if I am wrong, but Marbury v. Madison was decided by only three people as two of the justices recused themselves back when the court merely consisted of five people. To make matters worse, the supreme Court's Chief Justice was not one of the people who recused himself even though he should have been since he was the secretary of state who was responsible for mailing Marbury et al.'s commissions. If you ever have the time, read between the lines of Georgetown University law professor Susan Bloch's peer reviewed paper called "The Marbury Mystery: Why Did William Marbury Sue in the Supreme Court" (2000). In it, she provides evidence that Marbury would have known better than to file with the supreme Court in lieu of the lower federal court that existed at the time.
Lastly, if there is no legitimate source to justifying circumventing the amendment process to usher in judicial review legally, are we not potentially facing a significant conspiracy? After all, unless I am missing something obvious, the only legitimate way to address the alleged fact that the Constitution is silent regarding judicial review would be to exercise our Article V rights. And I find it impossible to believe that both sides of the aisle could have been unaware of this for over two centuries. In fact, I know that wasn't the case, but it never went anywhere. I apologize the length of my post, but you are lawyers.
So I wondered how the sCOTUS could get away with legislating from the bench by striking down the Judiciary Act of 1789 or any number of cases it later exercised judicial review. After all, Federalist No. 78 was little more than an anonymous essay Alexander Hamilton submitted to two New York newspapers under the pseudonym "Publius" shortly before New York voted whether or not to ratify the Constitution. Moreover, James Madison even wrote many years later that the Federalist Papers didn't go as planned as he, Alexander Hamilton and John Jay had originally agreed to proof read each others' articles before submitting them for publication before quickly finding out they didn't have time to do that. Certainly by the time Hamilton got to Federalist No. 78 no one was proofing Hamilton's draft, and more importantly, Madison also admitted many years later that he either had not or no longer agreed with certain opinions written in that body of work. Basically Federalist No. 78 was nothing more than an opinion or op-ed article.
So what gives the supreme Court the power to not only strike down laws (a legislative act) but to change or determine the meaning of a law beyond what is reasonably discernible form its text (another legislative act)? For example, what gave the sCOTUS the right to decide speech meant anything other than a spoken or written world or a thought? After all, the only widely distributed dictionary at the time was one of the editions of Samuel Johnson's Dictionary of the English Language which only included such definitions. Nonetheless, somehow the supreme Court was able to rule that speech would now include armbands (such as those worn by 13-year old students in school protesting the Vietnam War). It would later use artistic license for pornography, money, and other things it deemed as free speech despite the context of the definition of the word. This is a dangerous power because the first use of judicial review starts to build precedent where additional artistic license is exercised.
Even the fist definition I found online thirty seconds ago does not define the word speech to include these abstract ideas (Definition of SPEECH). Other examples of judicial review drastically changed our government forever. I was taught in college that the supreme Court didn't use judicial review again after Marbury v. Madison (1803) for approximately 50 years, but that clearly was not true. When "Maryland imposed a tax on the Bank of the United States and questioned the federal government's ability to grant charters without explicit constitutional sanction," the Court ruled in McCulloch v. Maryland (1819) that the "Supreme Court held that the tax unconstitutionally interfered with federal supremacy and ruled that the Constitution gives the federal government certain implied powers" (Supreme Court Landmarks). So much for the Tenth Amendment! The court would go on to also use judicial review to rubber stamp legislation that violated separation of powers doctrine. For example, the president would later lose his ability to fire certain executive bureaucrats. It would also rubber stamp the ability for the executive branch to violate Article I, Section 1. As one University of Virginia law professor told an assembly of law students, federal laws are created one of three ways in this country by the legislative branch creating statutes, by the executive creating regulations, and by the judiciary's use of judicial review & stare decisis. What happened to Article I, Section 1? There was never an amendment ratified to change it. Why would we fundamentally allow the Constitution to change so drastically through circumvention rather than by its prescribed remedy for revision?
As long as we are using the rules of the English Language, the Tenth Amendment, combined with Article I, Section I and Article V, prohibits the use of judicial review. Whenever we feel a need to add or otherwise alter the Constitution we can have 3/4ths of the states ratify a constitutional amendment. The flow chart of such a concept is so simple, but it appears to have been ignored at virtually every turn. Why would we ever need to polarize the discussion surrounding judicial review at all? If people felt that strongly about it, we could have merely passed a constitutional amendment.
We also know that it was not the founders' intention to grant the sCOTUS judicial review. James Madison wrote Thomas Jefferson on October 24, 1787 less than two months after drafting the Constitution (which was ratified the following summer), and referring to judicial review as "a negative", he said the delegates at the Constitutional Convention discussed giving this power to the judiciary but decided against it for three reasons. First, they felt the time to address the constitutionality of a law was before it became one and could cause injury. Second, he pointed out that it was not a practical check on states [or other government departments for that matter] because not everyone could afford to fight a case all the way to the supreme Court. Third, he said the delegates feared that states might succeed from the union if the Court ever attempted to exercise such power. I will add to his list by remind everyone that, with few exceptions, the supreme Court of the United States is an appellate court only, and a case must be ripe before the court will hear it, and even then, the Court can decide not to hear it, and they do not have to explain to the American people why. All this means that it is a ridiculous notion to think judicial review is a viable step in the checks and balances process, especially when all three branches of government are walking in lock step for political or other reasons. Again, if the founders intended the judiciary to decide such matters with "a negative", why did they not grant the Court a negative on the legislature before a bill becomes law as Thomas Jefferson et al. had advocated (see his letter to Madison dated October 24, 1787).
Thomas Jefferson knew something was afoul years before the court appeared to have usurped Article I, Section 1 power in Marbury v. Madison (1803) when he wrote his cousin/former attorney general/former secretary of state Edmund Randolph on August 18, 1799. In his letter Jefferson stated that it appeared to him that the judiciary was trying to usher in English common law under the radar. That's rather prophetic considering what happened four years later, don't you think? I freely admit that the states were fully within their right to adopt any provisions of English common law that which so long as they did not conflict with the Constitution because of the Tenth Amendment, but that same amendment obviously precludes such usage at the federal level given the express words of the Constitution (again, so long as we agree to use the rules of the English Language). Moreover, it's ridiculous to assume judicial review was implied as we certainly did not even come close to adopting all provisions of English common law. So how did we decided which ones to use? We didn't. The matter had been settled at the Constitutional Convention.
I am not a lawyer, but again, I ask you is there any legal justification for the supreme Court, or any federal court, to use judicial review to alter the constitution or change either federal or state law? After all, the only exception to the legislature's passage of laws in the constitution is the presidential veto. No such judicial veto was ever mentioned. Moreover, a judicial veto is a much more powerful veto than the one the president yields. It allows for, not only for bills to be rejected, but these are statutes passed by representatives, senators and (in most cases) the president. In other words, a simple majority of justices (essentially appointed for life) can override 536 people and the American people who hold them accountable (even when justices recuse themselves). Correct me if I am wrong, but Marbury v. Madison was decided by only three people as two of the justices recused themselves back when the court merely consisted of five people. To make matters worse, the supreme Court's Chief Justice was not one of the people who recused himself even though he should have been since he was the secretary of state who was responsible for mailing Marbury et al.'s commissions. If you ever have the time, read between the lines of Georgetown University law professor Susan Bloch's peer reviewed paper called "The Marbury Mystery: Why Did William Marbury Sue in the Supreme Court" (2000). In it, she provides evidence that Marbury would have known better than to file with the supreme Court in lieu of the lower federal court that existed at the time.
Lastly, if there is no legitimate source to justifying circumventing the amendment process to usher in judicial review legally, are we not potentially facing a significant conspiracy? After all, unless I am missing something obvious, the only legitimate way to address the alleged fact that the Constitution is silent regarding judicial review would be to exercise our Article V rights. And I find it impossible to believe that both sides of the aisle could have been unaware of this for over two centuries. In fact, I know that wasn't the case, but it never went anywhere. I apologize the length of my post, but you are lawyers.
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