Reviewing Judicial Review
In the most famous defense of the U.S. Supreme Court’s power to declare acts of the federal and state legislatures unconstitutional, Alexander Hamilton argued that it was the Court’s job only to implement the will of the people as expressed in the Constitution. If the Court went beyond that—interpreting the document to include things that did not reflect the people’s original understanding—then the justices would be infringing on liberty itself. Quoting Montesquieu on this point, Hamilton stressed that judges should not be legislators and implied that they should leave the creation of new law to other branches of government, or to the people themselves.
That was American orthodoxy for most of our history, but beginning in 1937, the Court—frightened by Franklin D. Roosevelt’s overwhelming electoral success and concerned by his charge that the justices were applying “horse and buggy” notions to their interpretation of the Constitution—began to rewrite that document, in accordance with the President’s preferences. The first thing the justices changed was the allocation of power between the state and federal governments, as they began to permit Congress to regulate virtually all of American life. In the 1950’s, 60’s, and 70’s, the justices, often influenced by trendy psychological or sociological theories, took control of state education, of state and local law enforcement, and of legislative reapportionment. In 1973, out of whole cloth, the Supreme Court created a constitutional right to abortion, and, in similar acts of judicial legerdemain, the Court forbade mandatory prayer and Bible reading in America’s public schools.
Campaigning for president, Sen. John McCain repeated George W. Bush’s claim that, if elected, he would appoint judges who would understand the difference between judging and legislating. Barack Obama, a former constitutional-law professor who is more closely in tune with the current biases of the academy, declared that he would choose justices who had some sense of what it meant to be an outsider, or a member of a minority, or a teenage mother. Obama was strongly signaling that he believes the judicial role is to change the law in a more progressive direction—toward the reallocation of resources and power to minorities, women, labor, and other favored constituencies of the Democratic Party.
Obama was the choice of a majority of the American people, and, alas, popular opinion now seems to reject what we Americans have always gloried in: the rule of law itself. Can anything be done? Have we completely lost our cherished notion that ours was supposed to be “a government of laws and not of men”? For decades Republicans thought that, if only Republican presidents could put conservative jurists on the Court, there could be a return to the jurisprudence of the Framers, but with some exceptions (Scalia, Thomas, Roberts, and Alito), this strategy has failed. Some—most notably, Chronicles contributor William Quirk—have urged Congress to control the Court by “stripping” it of jurisdiction to meddle in areas better left to the states, but that requires a Congress committed to reining in judicial abuses. We now have a congressional majority that celebrates them. Worse, the few efforts that Congress has undertaken to strip jurisdiction—in the area of wartime executive discretion, for example—have been blatantly and wrongly rebuffed by a majority of the Court itself.
Probably the only means of restoring the Republic’s original understanding of law is to remind the American people how that understanding came to be. The Framers, having studied the manner in which English monarchs misused the courts to serve their own purposes, sought to ensure that our law would protect citizens’ most important interests: life, liberty, and property (after John Locke’s formulation). Those Framers also understood that there could be no order without law, no law without morality, and no morality without religion. They were, in short, the antithesis of the secular humanists who are now ascendant in our country. Those in charge are currently in the process of imperiling private property itself, and one can only hope that they do not extend their efforts to endanger life and liberty. Out of the current chaos, however, may come a realization of an earlier, better way.
This article first appeared in the May 2009 issue of Chronicles: A Magazine of American Culture.