Round Table Discussion

Reviewing Judicial Review: A Government of Justices

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...

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