By Douglas V. Gibbs
Once again, with a new slate of rulings, the United States Supreme Court has revealed to Americans how far it has strayed from the United States Constitution. I am not necessarily referring to their rulings in particular, but that fact that they are operating in the manner that they are. The judicial branch was designed by the Constitution to be the weakest of the three branches (which flies in the face of the “three co-equal branches” lie you were taught in school). Judicial Review is unconstitutional, interpreting the Constitution and federal law in the manner that the federal courts do is unconstitutional, and striking down laws and executive orders with their rulings are unconstitutional. And I know that this constitutional perspective I am tossing at you regarding Judicial Review and the current state of the Supreme Court must seem confusing to some of you. What it should do is raise for you fundamental questions about the proper role of the judiciary in American governance.
First, Judicial Review is unconstitutional. I don’t care how long the legal system has claimed otherwise. The very idea that Judicial Review is unconstitutional has substantial historical support. The Constitutional Convention rejected proposals for judicial review of legislative acts. James Madison’s notes indicate that the framers explicitly considered and rejected granting courts this power. Marbury v. Madison (1803), however, has been used as the mechanism that codified Judicial Review into law, with supporters of the concept arguing that Judicial Review was created through judicial assertion. But, all legislative powers belongs to Congress. All amendments must be ratified by the States. In the case of Judicial Review, neither legislation, nor the amendment process, was used to breathe life into it. Chief Justice John Marshall’s opinion simply established what he called the “essential dignity” of the judicial branch, which was nothing more than an innovative unconstitutional interpretation rather than a clearly enumerated power.
Once the courts believed they could wield this power without retribution, the launch of a self-expanding federal government boomed into action. If the federal judiciary can determine the scope of federal power, then the federal government that is supposed to be limited in its authorities may also operate as the same entity determining those limits; a clear conflict with the principle of limited government that animated the Constitutional Convention.
As a result, ideology has naturally emerged on the Court. And when adherence to original intent is labeled as “conservative” or “partisan,” it reveals how far we’ve strayed from the original constitutional design. The constitutional job of the justices from an original viewpoint is to apply the law. Not interpret it. Not review it. Not strike it down. Their jobs is simply applying the law as written, not creating policy preferences. The very fact that we can predict how justices will rule based on their supposed ideological leanings demonstrates that constitutional interpretation has become the norm, and in modern politics it has evolved into policy-making.
The current situation where we classify justices as “leftist” or “conservative” would have horrified the framers of the Constitution. Article III judges were intended to be insulated from politics precisely so they could apply law impartially. Life tenure was meant to free them from political pressure, not to entrench ideological factions.
The distinction between applying versus interpreting the law is crucial. The modern view that the Constitution is a “living document” that requires creative interpretation has effectively transformed justices into legislators. This judicial activism has accelerated as both political parties have recognized the Court as a policy-making body rather than a legal one.
The problem compounds itself: once Judicial Review was established, it became inevitable that presidents would nominate justices based on their expected policy outcomes rather than their judicial temperament. This has created the polarization we see in today’s courts, and it is very problematic.
From a constitutionalist perspective, the solution would be a return to the framers’ vision: justices who apply the law as written rather than according to their policy preferences. This would mean recognizing that the Constitution doesn’t contain many policy prescriptions; it establishes a structure of government and leaves policy decisions to the political process.
The existence of Judicial Review, and the tension between limited government and Judicial Review is perhaps the central constitutional paradox of our time. If the federal judiciary can determine the scope of federal power, then limited government becomes whatever the courts say it is, which is no limitation at all.
— Political Pistachio Conservative News and Commentary
