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10/24/2018

Lawrence Goldstone on Judicial Review (with my Objections) [Update: and a Response]
Michael Ramsey

In The New Republic, Lawrence Goldstone: How to Fix the Supreme Court: Weaken It.  It begins:

The confirmation of a Supreme Court justice never should matter as much as Brett Kavanaugh’s did, and that’s because the Supreme Court itself shouldn’t matter as much as it does today. That’s the conclusion of many legal observers—me included—after witnessing the partisan warfare in Washington over the past three months. In a New York Times op-ed last week, Pepperdine University law professor Barry P. McDonald wrote that the Kavanaugh hearings reflected the “unfortunate fact” that the “court has become a political actor that wields excessive power in our democracy.” [Ed.:  The McDonald article was noted on this blog here].

I generally agree that the Court has become too important in U.S. governance (though I'm also suspicious of the avalanche of essays making this point in left-leaning publications just after a right-leaning majority appears to be emerging on the Court; where have these writers been for the last 30 years while this problem has been developing?).  More in my area of interest, however, is the article's claim that judicial review was not part of the original Constitution:

[T]he greatest source of the Court’s current sway is judicial review, the power to declare a law void if the justices see it as being in conflict with the Constitution—a right granted to it nowhere in the Constitution.

While there was a good deal of discussion in Philadelphia about Supreme Court justices participating in a “council of review,” there was no serious proposal to grant the courts the power to determine the constitutionality of laws passed by Congress. In the ratifying debates, it was again largely those delegates who had opposed the Constitution, such as George Mason of Virginia, and Maryland’s Luther Martin, who predicted that the Supreme Court would seize such a role.

That’s precisely what Chief Justice John Marshall did, pretty much out of whole cloth, in 1803 in Marbury v. Madison. Although Marbury is often the lead case in Constitutional Law textbooks because it established the precedent for judicial review, scholar Leonard Levy characterized Marshall’s decision as “rampaging activism,” and “one of the worst opinions ever delivered by the Supreme Court.” Still, Marbury passed seamlessly into American jurisprudence and has since become the cornerstone of judicial power.

As regular readers know, this is something of a pet peeve of mine.  I think it very well established -- both in the Constitution's text and in contemporaneous commentary -- that judicial review was part of the original design and emphatically not something made up by John Marshall in Marbury.  

Without going into all aspects of the argument, just consider the text.  Article III, Section 2 says that "the judicial power shall extend to all Cases ... arising under this Constitution..."  What could these cases possibly be, aside from cases in which the judiciary is asked to find actions of the legislative or executive branches of the states or the federal government unconstitutional?  A case would not "arise under this Constitution" unless the Constitution could provide a remedy for the litigant. And since the U.S. Constitution is a limit on governmental power, the only way it could provide a remedy is if the courts found that a government action was contrary to the Constitution.

As to contemporaneous commentary, two of the best writers on the Constitution in the ratification debates -- especially on judicial power -- were Alexander Hamilton in the Publius essays and the anti-federalist Brutus.  Goldstone's essay discusses both at some length but elides the point that both thought judicial review was part of the Constitution's original design (Brutus worried about it; Hamilton defended it).  Brutus wrote (in essay XI), exactly in the terms of the textual argument above: 

The cases arising under the constitution must be different from those arising under the laws, or else the two clauses mean exactly the same thing.

The cases arising under the constitution must include such, as bring into question its meaning, and will require an explanation of the nature and extent of the powers of the different departments under it.

This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity.

Brutus thought this problematic, because there was no check on the judicial branch, and so "This power in the judicial, will enable them to mould the government, into almost any shape they please."

Hamilton, replying in Federalist 78, strongly defended judicial review:

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.

And further:

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. . . .

(Marshall repeated the core of these arguments in Marbury, though without attribution).

Hamilton thought this power in the courts was not a problem because, as he famously wrote, the judiciary has "no influence over either the sword or the purse, ...It may truly be said to have neither FORCE nor WILL, but merely judgment."

As Goldstone says, Brutus' fear turned out to be well-founded in the long run.  But that doesn't show that judicial review was not part of the original design.  Rather, the Brutus-Hamilton exchange shows that judicial review was understood as a core part of the Constitution from the beginning, as the text itself indicates.  Brutus and Hamilton drew different conclusions about the dangers of a Constitution that provided for judicial review, but neither had any doubt that the Constitution provided for it.

UPDATE:  Lawrence Goldstone responds:

First, thank you for comments that were measured and thoughtful, rather than shrill and belittling.  We’ve got far too much of that.  The problem for me with originalism is that it often seems to be a rubber yardstick.  Sometimes words have specific meanings and sometimes, as in this case, they don’t.  If you read the Philadelphia debates—or at least Madison’s version—there is nothing that one could conclude was a definitive statement endorsing judicial review.  The final version of Article III is the same.  Now, if you chose to say Article III might endorse judicial review, or could be interpreted to endorse judicial review, I would certainly agree.  But I’m not an originalist.  The phrase “all cases that arise under the Constitution" could easily mean something other than the power to void laws.  And, since I assume you know a lot about Marshall, his father purchased a full set of Blackstone’s commentaries, which became treasured possessions of his son.  So again, is it possible that the delegates, most of whom were fearful of a potent federal judiciary, although never specifically discussing the issue, had some, to paraphrase Justice Scalia, “secret intent?”  Well, yes.  Anything is possible.  But if originalism is to be an honest philosophy and not simply one of convenience, it, I believe, would be forced to reject that notion.