VIII.5: More Objections to Judicial Review

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More Objections to Judicial Review

Many American and British leaders have expressed objections to judicial review:

Andrew Jackson clearly had his objections to judicial review:

[T]he Supreme Court … ought not to control the coordinate authorities of this government. The Congress, the Executive, and the Court must, each for itself, be guided by its own opinion of the Constitution. (Jackson 1832)

Abraham Lincoln said America’s government was “of the people, by the people, for the people”. (Lincoln 1863) And he believed judicial review would destroy that idea:

[I]f the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, … the people will have ceased, to be their own rulers … (Lincoln 1861)

Jeremy Bentham, an British philosopher, jurist, and social reformer, agreed:

The power of repealing a law even for reasons given is a great power: too great indeed for Judges …. (Bentham [1776] 1891, IV.33)

Today, many believe that the majority of the writers of the U.S. Constitution did not intend to give the courts the power of judicial review.

For example:

When legislative sovereignty is recognized, along with the nature of checks and balance, and analytical errors are removed, it becomes clear why the Constitution does not give the Supreme Court the general power of judicial review of the acts of the coordinate branches; the reason is that judicial power was intended to be impartial and not involved in policy.

… We have powerful evidence … that an extraordinary majority at the convention refused to allow the Court to be associated with the executive in the council of revision or to be brought into the legislating process …. We may not assume, without express evidence, that a majority that rejected this role for the Court would have intended that the Court have, instead, a general power of judicial review of the acts of the national branches. (Anderson 1986, 154-5)

Many objections to judicial review follow the belief that the courts were meant as an agent of stability, while judicial review makes them an agent of social change.

That is, the agent of social change was supposed to be, not the courts, but the people through the election process. Has judicial lawmaking replaced the purpose of representatives? (Walker 1981, 137)

The Constitution’s framers gave the executive and legislative branches the responsibility for determining policy. However, Judicial review often prevents them from assuming that responsibility. (Ceaser 1986, 191)

Clearly justices and judges are far better trained in law than anyone. However, they have little understanding of what the millions of citizens think the Constitution’s words mean. So, our desire to fill our courts with professional judges trained in law leads to a loss of such understanding. That is, professional lawyers have not had the opportunity to be exposed to the non-legal jobs held by other citizens. So, a “professional judiciary” is detached “from those it passes judgment upon”. (Barber 2001, 75)

Judges and justices obviously understand law far better than the rest of us. But do they understand how law, especially their interpretation of it, affects the rest of us? Most importantly, do they interpret its words the same way you would?

This site is for discussing how to improve our political system. It is NOT for discussing party politics or political figures. So if you have a non-partisan question or comment, feel free to leave it below.

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Sources:

Anderson, Ann Stuart. 1986. “A 1787 Perspective on Separation of Powers”. In Separation of powers—does it still work? ed. Robert A. Goldwin and William A. Schambra. Washington: American Enterprise Institute for Public Policy Research.

Barber, N. W. 2001. “Prelude to the Separation of Powers”. In The Cambridge Law Journal, Vol. 60, No. 1 (Mar.), pp. 59-88. Cambridge: Cambridge University Press. Stable URL: http://www.jstor.org/stable/4508751.

Bentham, Jeremy. [1776] 1891. A Fragment on Government. Oxford: Clarendon Press.

Ceaser, James W. 1986. “In Defense of Separation of Powers”. In Separation of powers—does it still work?, ed. Robert A. Goldwin and William A. Schambra. Washington: American Enterprise Institute for Public Policy Research.

Jackson, Andrew. 1832. Veto Message on Jul. 10. University of Chicago Press. http://press-pubs.uchicago.edu/founders/documents/a1_8_18s20.html (Accessed Jun. 28, 2018).

Lincoln, Abraham. 1861. First Inaugural Address on Mar. 4. UShistory.org. www.ushistory.org/documents/lincoln1.htm (Accessed Jun. 28, 2018).

Lincoln, Abraham. 1863. Gettysburg Address. Wikipedia. https://en.wikipedia.org/wiki/Gettysburg_Address (Accessed Jul. 9, 2020)

Walker, David B. 1981. Toward a Functioning Federalism. United States: Winthrop Publishers, Inc.

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