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Evan Bernick on the Role of the Judiciary
Michael Ramsey

At Huffington Post, Even Bernick: The Constitution’s Keystone: Why Our Independent Judiciary Was No ‘Afterthought’ (responding to this New York Times Op-Ed by Barry McDonald [Pepperdine]: Eight Justices Are Enough).  Professor McDonald argues in part: 

The Supreme Court today is both political and powerful in ways that would be unrecognizable to the framers of the Constitution. They penned a mere five sentences creating a “supreme Court” and defining its jurisdiction. The judicial branch was something of an afterthought for them, because they believed that in a democracy the elected branches would be responsible for governing the country.

Judicial review, in its modern sense, did not exist. As the framers envisioned it, the justices appointed to the Supreme Court would mainly interpret and apply federal law when necessary to resolve disputes involving the rights of individuals. And though the framers’ views on the court’s role in interpreting and enforcing the Constitution are the subject of debate, it seems most likely that when disputes required determining whether a federal law comported with the Constitution, the court’s interpretation was supposed to bind only the parties in the particular case — not the legislative and executive branches generally.

Bernick responds:

McDonald proceeds from false premises about the Constitution’s substantive mission and the constitutional role of the judiciary, and he arrives at conclusions that are incompatible with judges’ constitutional duty.

Professor McDonald’s analysis is driven by what I have referred to as the “myth of majoritarianism”—the belief that the Constitution’s primary substantive mission is the facilitation of majority rule. Gallons of scholarly ink have been spilt in the course of efforts to reconcile the Constitution’s purportedly majoritarian character with the existence of an independent judiciary, staffed by unelected judges who are empowered to give authoritative expositions of law that bind elected officials. The myth of majoritarianism is responsible for an enduring academic obsession with the“countermajoritarian difficulty” that judicial review supposedly poses in a majoritarian democracy.

Although it has many adherents, the myth of majoritarianism is both false and pernicious. The Constitution authorizes and circumscribes government power in order to protect individual rights from the minoritarian tyranny of the few and the majoritarian tyranny of the many. No more does the government created by “We the People” have the authority to deprive individuals of the “blessings of liberty” that (according to the Preamble) the Constitution was “ordain[ed] and establish[ed]” to “secure,” than does the Declaration of Independence, by stating that governments derive their “just powers” from the “consent of the governed,” confer legitimacy upon governments that systematically violate “unalienable rights.” The Constitution’s mission of rights-protection is evident in both its explicit protections for individual rights and its structural limits on democratic decision-making, which create numerous chokepoints through which legislation must pass and which serve to prevent any government entity from attacking individual rights unopposed.

Once we understand the function of the Constitution’s architecture, we can appreciate how an independent judiciary serves as its keystone.

Earlier, Lyle Denniston had some similar thoughts at Constitution Daily: Constitution Check: Was the Supreme Court only an afterthought for the Founders?  He argues:

[The Court's power] is generally understood to mean the power to decide what the Constitution means and to enforce it against the actions of Congress and the Executive Branch.  It is true that this authority was questioned during the constitutional ratification period, but it is also true that those directly involved in writing and promoting the basic document did not share that skepticism.  They believed that an independent system of courts was vital to human liberty, and the rights guaranteed by the Constitution.   To them, it was hardly an afterthought.

Historians generally accept that Alexander Hamilton’s essay No. 78, in the Federalist Papers, was a true reflection of what the founding generation believed about the judiciary.  And it was less than a generation later – a mere 15 years – that Chief Justice John Marshall famously declared that “it is emphatically the province and duty of the judicial department to say what the law is.”  That was what Marbury v. Madison stood for in 1803, and stands for today.

In every generation, it seems, revisionist ideas come back into vogue in the nation’s public discourse about the Constitution, and not uncommonly the suggestion arises that the Supreme Court is far too powerful and needs to be put back into the limited place that, supposedly, the founding generation wanted it to have.

This is sometimes offered as “originalist” thinking about what the Constitution truly meant in the 18th Century.  True, there were “anti-Federalists” who fretted back then about the power that the new Supreme Court would have, as Hamilton recognized and as he sought to answer in Federalist 78.  Hamilton’s view[s], surely, were closer to the prevailing sentiment at the time than were those who simply did not want the new Constitution even to be ratified.   They did not get their wish.

It seems to me, though, that there is a big difference between the Court playing the active role that Hamilton envisioned and what the modern Court does.