Who Needs Judicial Review?

Along the lines of our discussion of judicial review over the weekend, it seems Tom DeLay has also decided that the judiciary should not have the power to deem legislation unconstitutional. The Washington Post has an editorial criticizing DeLay's efforts to remove various bills from judicial oversight. DeLay is currently focusing on wedge issues such as gay marriage and the Pledge of Allegiance. The Post believes that ruling on constitutionality is a "central function of the federal judiciary". As per our discussion, I agree.

Following up on that discussion, I believe that if the legislature is given the right (or duty) to determine constitutionality it would almost certainly follow that they would not deem the laws they themselves write and pass to be unconstitutional, which would necessarily put the power of laws passed by congress on a level footing with the constitution itself. Aside from the fact that this seems a bad idea on the face of it, it seems clear that it was not what was intended in the constitution. Why state that the constitution is the supreme law of the land and make the process for ammendment to the constitution much more difficult and convoluted than the process of passing legislation if there was to be no substantive difference between the two?

Further, the history of judicial review does not start and end with Marbury v. Madison. Even in 17th century England, Chief Justice Edward Coke determined that both the King and the Parliament were subject to the laws of the land. He wrote: "in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void." This concept bubbled up in a few other cases prior to US independence, including one case, Lechmere's Case which was quite influention with John Adams and other revolutionaries. This would suggest that the founders were familiar with the concept of judicial review when they created teh constitution. There were also a number of cases in which judicial review was invoked in US courts even prior to the ratification of the constitution which challenged constitutionality of legislation on the state level (Holmes v. Walton, Commonwealth v. Caton, Rutgers v. Waddington, Trevett v. Weeden, Baryard v. Singleton). Regarding the last case, the plaintiff's attorney, James Iredell (later a Supreme Court justice) wrote: "Either the fundamental unrepealable law must be obeyed, by the rejection of an act unwarranted by and inconsistent with it, or you must obey an act founded on authority not given by the people. ...It is not that the judges are appointed arbiters... but when an act is necessarily brought in judgment before them, they must, unavoidable, determine one way or another... Must not they say whether they will obey the Constitution or an act inconsistent with it?"

Although not explicitly elaborated in the constitution, the power of judicial review was discussed by the framers. Elbridge Gerry wrote that "the Judiciary... by their exposition of the laws [would have] a power of deciding on their Constitutionality." The Anti-Federalist letters attacked the constitution on the issue of judicial review, an d Alexander Hamilton, in The Federalist, defended judicial review as a necessary element of the constitutional structure. The Federalist No. 78 is probably the single most critical document to consider in any discussion of judicial review. In it Hamilton established both the right of the court under the constitution to review constitutionality, and the necessity of their doing so. It is my understanding that much of the Marbury v. Madison decision was based on The Federalist No. 78. On judicial review, Hamilton wrote the following, which I'll leave as the final words on the subject:

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

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. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.