Brutus and the Court
Many controversies end prematurely not because one side is necessarily right, but because it wins elections, or a war, or just manages to get its view established as conventional wisdom. Eventually, people just stop debating very debatable things, and judicial review is one of these.
The argument over secession ended when the North won the Civil War; the argument over the New Deal ended because its programs were too popular to resist; Pearl Harbor suddenly put a stop to the debate over whether the United States should get involved in World War II. Yet the losers in these issues had strong points that were never adequately answered.
In the same way, mere custom has settled the debate over judicial review. Nearly all Americans have long taken for granted that the U.S. Supreme Court has a virtual veto over all legislation, Federal, state, and local. The Court has been claiming and exercising this power for nearly two centuries, and few Americans see anything questionable about it.
This means that one branch of government, unelected, unaccountable to the people, and appointed for life, may, at its whim, effectively change the meaning of the U.S. Constitution. The president can veto any act of Congress, and Congress may override his veto; but neither of the other branches has a similar control over the Courts rulings, however wrong or even downright batty they may be.
The concept of checks and balances, parroted in civics classes, doesnt apply to the Supreme Court. The justices are appointed for life during good behavior, and once appointed they are out of control. Furthermore, most of the laws they strike down are state laws, not Federal ones, and the state legislatures have no defense against them. So much for checks and balances.
The Court is often accused of legislating from the bench; but the power to edit the Constitution itself is far, far beyond any legislative power. In order to correct the Courts mistakes, under the current system, its necessary to undertake the huge effort of adding amendments to the Constitution (or hoping that as the current justices die or retire, they may be succeeded by others who will reverse their decisions slim chance of that!).
The power to strike down laws isnt mentioned, or even hinted at, in the Constitution. The Courts few powers are set forth in a couple of paragraphs. Judicial review isnt among them.
So where did this sweeping power come from? In Federalist No. 78, Alexander Hamilton, after assuring readers that the Supreme Court would be the weakest and least dangerous of the three branches, argued that it must necessarily have the power to nullify acts of Congress that violate the Constitution. This view has prevailed, but Hamilton didnt face the problems that might arise if such a power were abused.
Others did, though. The pseudonymous Brutus, arguing against ratification of the Constitution, saw the danger of the judiciary very precisely and presciently: the justices power would be altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.
Brutus further warned that the Federal judiciary might overpower state courts and legislatures. And he saw nothing to prevent the Supreme Court from expanding its own power.
All Brutuss dire prophecies have been fulfilled. Yet his arguments have never been refuted. Today we are paying the price for ignoring them.
The Court is out of control, and the only solution conservatives can think of is to appoint more conservatives, who will use their power with restraint. But that power itself is the problem. Giving it to better justices wont solve it.
What will? Only, perhaps, a serious threat of impeachment would make the Court think twice before abusing its power. But this raises further problems, which Ill address in a future column.
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