Activist Supreme Court Judges Created Their Own Power
The Constitution Does Not Authorize Judicial Review
March 16, 2013


Our teachers are wrong.  The Constitution does not empower the Court to interpret the Constitution. 

The founders didn’t give that power to anyone.  The Court decided that for itself.

In 1803, six activist Supreme Court justices claimed for themselves the power of Judicial Review. 

It does not appear in the Constitution, but they still wield that power today, and it affects all of our lives.

The U.S. Constitution
The Constitution’s Article III establishes the Supreme Court and authorizes Congress to create lower-level federal courts.  Congress set the number of court justices at six from the beginning, in 1789, until they increased it to nine in 1869, where it remains today.

The Constitution empowers the Supreme Court to hear cases involving:

  • civil and criminal appeals based on federal laws
  • ambassadors, other public ministers, and consuls
  • admiralty and maritime jurisdiction
  • controversies to which the United States is a party
  • controversies between two or more States

Creating Judicial Review
According to Cornell University Law School’s Legal Information Institute:
Judicial review is the idea, fundamental to the US system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judicial branch.  Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution.

In 1801, outgoing President John Adams made many lame-duck appointments at the end of his term, while waiting for Thomas Jefferson’s inauguration.  The paperwork didn’t go through on some of them, and Jefferson vacated the appointments.  John Marbury lost his appointment to a minor State Department position and sued then-Secretary of State James Madison.  There was much legal wrangling about whether the court had the power to order Jefferson to honor Adams’ appointments.  In 1803, the court decided that it did not, as such power was unconstitutional.

Chief Justice John Marshall wrote that the duty to uphold the Constitution requires the Court to overturn unconstitutional laws.  He said, "It is emphatically the province of the judicial department to say what the law is."
From that day to this, Marbury vs. Madison is the single most important Supreme Court decision. 

Historic Judicial Review Cases
In its 224-year history, the U.S. Supreme Court has exercised its judicial review power to change American law and society many times. The Court upheld the "separate but equal" doctrine in 1896, and then struck it down in 1954. The justices decreed that indigent defendants have the right to free attorneys in 1963 and required police to notify everyone arrested of their constitutional rights in 1966. They clarified the right to privacy regarding abortion in 1973 and corporations' rights to pay for political advertisements in 2010. And they validated the constitutionality of the Patient Protection and Affordable Care Act - Obamacare - in 2012.

Pending Judicial Review Cases
The Court is currently considering several cases involving judicial review issues, including marriage equality, criminal justice, search and seizure, and voting rights. The American Civil Liberties Union is participating in or monitoring all of them.

What This Means for Americans
Our founders disagreed on whether Congress or the Court should exercise judicial review.  While the Federalist Papers do address the issue, the Constitution doesn’t mention judicial review at all.  The Supreme Court assumed the power for itself, and no one objected or tried to amend the Constitution to clarify the matter.

It’s reasonable to delegate that power to some segment of government, but it seems undemocratic to entrust five people – the Supreme Court majority – to interpret the Constitution for 308 million Americans.  Such cases involve some of the most important issues in our lives, but I don’t see a reasonable alternative.  Since the judicial review principle doesn’t appear in the Constitution, the Tenth Amendment would delegate that power to the states.  However, allowing each of 50 states to interpret the Constitution and federal laws in their own ways would produce legal and political chaos.  In addition, can you imagine Congress doing it?  So, unless and until we amend the Constitution to say otherwise, entrusting that power to the Supreme Court is our best option.  Resolving disputes is the entire purpose of courts.

Once a case is before the Court, individuals can't influence the process.  But we can make a difference as participants in the legal system.

American Civil Liberties Union
In 1920, some Americans opposed Justice Department violations of citizens’ civil rights and liberties.  They founded the ACLU to combat that behavior.  The ACLU is a nonprofit, nonpartisan, tax-exempt organization that has only a single client:  The U.S. Bill of Rights.

The organization has represented individuals and organizations at all points on the political spectrum, to protect our rights to free speech, press, religion, assembly, petition, bear arms, proper criminal procedures, fair bail and imprisonment, attorneys, trials, equal protection and due process of the laws.

We can all support the ACLU as members.  Take a look and see what they do for you.

For more information:
Read the Constitution
U.S. Supreme Court
Cornell University Law School, Legal Information Institute
Federalist Papers
American Civil Liberties Union

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