Judicial Review

The Supreme Court of the United States spends much, if not most, of its time on a task which is not delegated to the Supreme Court by the Constitution. That task is: Hearing cases wherein the constitutionality of a law or regulation is challenged. The Supreme Court’s nine Justices attempt to sort out what is, and what is not constitutional. This process is known as Judicial Review. But the states, in drafting the Constitution, did not delegate such a power to the Supreme Court, or to any branch of the government. Chief Justice John Marshall began the trend of increasing the Supreme Court’s power by using an expansive reading of the enumerated powers.

Since the constitution does not give this power to the court, you might wonder how it came to be that the court assumed this responsibility. The answer is that the court just started doing it and no one has put a stop to it. This assumption of power took place first in 1794 when the Supreme Court declared an act of congress to be unconstitutional, but went largely unnoticed until the landmark case of Marbury v Madison in 1803. Marbury is significant less for the issue that it settled (between Marbury and Madison) than for the fact that Chief Justice John Marshall used Marbury to provide a rationale for judicial review. Since then, the idea that the Supreme Court should be the arbiter of constitutionality issues has become so ingrained that most people incorrectly believe that the Constitution granted this power to the federal judiciary.

In 1800 the Federalists and their candidate, President John Adams, lost the election to Thomas Jefferson.  Early in 1801 the lame-duck Federalist Congress enacted a controversial Judiciary Act that created 58 new judgeships, including 42 justiceships of the peace, for Adams to appoint.  Jefferson complained that the Federalists “have retired into the judiciary as a stronghold.”  On the night March 3, 1801, John Marshall, acting as secretary of state, affixed the official seal to the commissions for the justices of the peace.  He did not, however, deliver the commissions.  The next day, after Thomas Jefferson was inaugurated, he directed the new secretary of state, James Madison, to withhold delivery of 17 of the 42 commissions, including that of William Marbury.  William Marbury sued for a writ of mandamus to require Madison to hand over his commission.

The decision in Marbury’s case, written by Chief Justice John Marshall (the very same John Marshall who affixed the seal to Marbury’s commission–talk about a conflict of interest!) established and justified the power of judicial review.  It is the first case read by virtually every first-year law student and is generally considered the greatest of all landmark cases.  Marshall strained to reach his result.  The plain words of Section 13 of the Judiciary Act indicate that Marbury went to the wrong court or invoked the wrong statute (or both), but Marshall proceeded as if the suit were authorized by Section 13 and then declared the statute unconstitutional on the grounds that it purported to expand the Court’s original jurisdiction in violation of Article III.  Marbury’s suit was dismissed for lack of jurisdiction.  Marshall’s decision–brilliant in its conception–allowed the Court to brand Jefferson a violator of civil rights without issuing an order that the President could have ignored.

Original Intent & Judicial Review

The Constitution does not expressly provide for judicial review.  What should be made of this fact?  Does it suggest that the framers did not intend to give the courts such a power?  Not necessarily, although that is one explanation for its absence.  It is also possible that the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated.  A third possibility is that the framers didn’t think that the issue would ever come up, because Congress would never pass legislation outside of its enumerated powers.

Only 11 of the 55 delegates to the Constitutional Convention, according to Madison’s notes, expressed an opinion on the desirability of judicial review.  Of those that did so, nine generally supported the idea and two opposed. One delegate, James Wilson, argued that the courts should have the even broader power to strike down any unjust federal or state legislation.  It may also be worth noting that over half of the thirteen original states gave their own judges some power of judicial review.

Many of the Left’s recent causes—such as the liberalization of abortion law, race-conscious programs of affirmative action, and same-sex marriage, to take just three examples—are highly controversial and probably could not have succeeded on a national scale if their proponents had relied solely on appeals to the ballot box. At the very least, these policies could not have advanced as far and as quickly as they did if they had been left to the voters and their elected representatives. It was liberal judges exercising their power that bolstered their rise.

Article III of the Constitution provides for the establishment of a Judicial branch of the federal government and Section 2 of that article enumerates the powers of the Supreme Court. Here is Section 2, in part:

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

  • to all Cases affecting Ambassadors, other public Ministers and Consuls;
  • to all Cases of admiralty and maritime Jurisdiction;
  • to Controversies to which the United States shall be a Party;
  • to Controversies between two or more States;
  • between a State and Citizens of another State;
  • between Citizens of different States;
  • between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Feel free to examine the entire text of Article III to assure yourself that no power of Judicial Review is granted by the Constitution.

“Well,” you might say, “someone has to review laws for constitutionality. Why not the Supreme Court?” Some possible answers:

  • First and foremost, it is not a power granted to the Supreme Court by the Constitution. When the Supreme Court exercises Judicial Review, it is acting unconstitutionally.
  • It is a huge conflict of interest. The Federal Government is judging the constitutionality of its own laws. It is a classic case of “the fox guarding the hen house.”
  • The Constitution’s “checks and balances” were designed to prevent any one branch of government (legislative, executive or judicial) from becoming too powerful and running roughshod over the other branches. There is no such system of checks and balances to protect the states and the people when multiple branches of government, acting in concert, erode and destroy the rights and powers of the states and the people.
  • Even if the Supreme Court could be counted on to keep the Executive and Legislative branches from violating the Constitution, who is watching the Supreme Court and will prevent the Judicial branch from acting unconstitutionally? Unless you believe that the Supreme Court is infallible (and, demonstrably, it is not), then allowing the Supreme Court to be the sole arbiter of Constitutionality issues is obviously flawed.
  • Justices are appointed, not elected and may only be removed for bad behavior (which has happened in the distant past but these days, appointment to the Supreme Court is like a lifetime appointment). If the court upholds unconstitutional laws, there is no recourse available. We the People cannot simply vote them out to correct the situation. Thomas Jefferson wrote, in 1823:”At the establishment of our constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.“It is the Constitution, not the Supreme Court, which is the Supreme Law of the Land. Even the Supreme Court should be accountable for overstepping Constitutional limits on federal power.
  • Judicial review turns the Constitution on its head. The Judiciary was created as the weakest branch, controlled by both the Legislative and Executive branches. Judicial review makes the Judiciary master of both the Legislature and Ececutive, telling them both what that may and may not do.
  • There are only nine Justices and, under the current system, it takes only a simple majority — five votes — to determine a case. Given the supermajority requirement mandated by the Constitution to pass Constitutional amendments, a simple majority requirement by the Supreme Court, to uphold a suspect law, defies the spirit of the Constitution. If 44.44% of the Supreme Court justices (four of nine) think a law is not constitutional, we should err on the side of caution and declare it unconstitutional.
  • The people and the states have little control over the makeup of the Supreme Court.
  • Officials in all three branches of government take an oath of office to uphold the Constitution. The Supreme Court Justices, Senators, Congressmen, and Vice President, and other federal officers, all take an oath of office to “support and defend” the Constitution. (The president’s oath of office in Article II, Section 1, requires that he “preserve, protect, and defend the Constitution of the United States.”) Why is the Supreme Court’s version of “constitutional” considered more authoritative? Is the Judicial branch more to be trusted than the Executive or Legislative branches? Prudence dictates that we be wary of all three branches (and especially wary of the one unaccountable branch).
  • Given that it was the people and the states which established the Constitution, it is the states who should settle issues of constitutionality. The Constitution is a set of rules made by the states as to how the government should act. The “judicial review” paradigm allows the government to make its own rules with no say by the original rule-makers — the states.
  • The Constitution was created by the states and any question as to the meaning of the Constitution is rightly settled by the states. When you make rules for your children, do you permit your children to interpret your rules in any manner they like? Of course not. Yet, the states are permitting the federal government — the “child” of the states — to do exactly that.
  • Since the power of Judicial Review is not expressly granted to the Supreme Court by the Constitution, this power, per the tenth amendment, is “reserved to the States respectively, or to the people.

Read that last listed reason above again, for it contains the key to this site’s being. The Constitution is very clear; any power to review laws to see if they are constitutional belongs to the states and to the people. Therefore, the Supreme Court is itself acting unconstitutionally when it exercises the power of ‘Judicial Review.’ It would require a Constitutional Amendment specifically granting this power to the court in order for ‘Judicial Review’ to be constitutional!

And just how should the determination of “constitutionality” be handled? For that answer, it helps to understand how the Constitution is (supposed to be) amended.

Source: https://constitutionality.us/SupremeCourt.html

See also:

Vidal v. Girard

Stephen Girard, a French immigrant, died in Philadelphia. His estate of over $7 million dollars was left with the stipulation that it be used to start an orphanage and school that did not allow the Bible. The city rejected this plan to separate the Bible from the education of our youth. In a case that went before the U.S. Supreme Court (Vidal v. Girard’s Executors, 1844), the court ruled unanimously (9-0) that the Bible could not be extracted from the education of our youth. Daniel Webster, who argued the case on the behalf of the government said this:

If there is anything in my thoughts or style to commend, the credit is due to my parents for instilling in me an early love of the Scriptures. If we abide by the principles taught in the Bible, our country will go on prospering and to prosper; If we and our posterity shall be true to the Christian religion, if we and they shall live always in the fear of God and shall respect His Commandments…we may have the highest hopes of the future fortunes of our country;…But if we and our posterity neglect religious instruction and authority; violate the rules of eternal justice, trifle with the injunctions of morality, and recklessly destroy the political constitution which holds us together, no man can tell how sudden a catastrophe may overwhelm us and bury all our glory in profound obscurity.”

The U.S. Supreme Court rendered its unanimous opinion, stating:

And we cannot overlook the blessings, which such men by their conduct, as well as their instructions, may, nay must impart to their youthful pupils. Why may not the Bible, and especially the New Testament, without note or comment, be read and taught as a divine revelation in the college – its general precepts expounded, its evidences explained and its glorious principles of morality inculcated? What is there to prevent a work, not sectarian, upon the general evidences of Christianity, from being read and taught in the college by lay teachers? Certainly there is nothing in the will that proscribes such studies. Above all, the testator positively enjoins, “that all the instructors and teachers in the college shall take pains to instill into the minds of the scholars the purest principles of morality, so that on their entrance into active life they may from inclination and habit evince benevolence towards their fellow-creatures, and a love of truth, sobriety, and industry, adopting at the same time such religious tenets as their matured reason may enable them to prefer.”

Now, it may well be asked, what is there in all this, which is positively enjoined, inconsistent with the spirit or truths of Christianity? Are not these truths all taught by Christianity, although it teaches much more?

Where can the purest principles of morality be learned so clearly or so perfectly as from the New Testament? Where are benevolence, the love of truth, sobriety, and industry, so powerfully and irresistibly inculcated as in the sacred volume?…

Education without Christianity is “repugnant”–so says the Supreme Court!  Rather surprising wouldn’t you say?  The notion that Christianity, actively teaching and promoting Biblical principles, would be allowed within a government-run school is ridiculous, right?  “That’s not constitutional!”“It’s a violation of the separation of Church and State!”  Think again!  We may have that completely wrong.

A Very Unique Case involving Government-Run Schools and Christianity

In 1844, a very unique case reached the U.S. Supreme Court involving the estate of Frenchman Stephen Girard (Vidal v. Girard’s Executors). He had arrived in America before the Declaration of Independence, where he settled in Philadelphia and lived there until his death in 1831.  He bequeathed his estate (valued at over seven million dollars) to the city, with the condition that it construct for orphans between the ages of six and eighteen a “college” to be named after him, in which he specifically stipulated:

“I enjoin and require that no ecclesiastic, missionary, or minister of any sect [denomination] whatsoever, shall ever hold or exercise any station or duty whatever in the said college—nor shall any such person ever be admitted for any purpose, or as a visitor within the premises.”

Girard’s heirs, seeking to keep his estate in their hands, filed suit against the will and secured the great Daniel Webster, the “Defender of the Constitution,” as their lawyer. Webster was considered the greatest attorney in his generation and personally argued and won numerous cases before the U.S. Supreme Court. In fact, it is reported that opposing attorneys, when learning they would be facing Webster, would sometimes withdraw from a case rather than face his genius.

An Unprecedented Situation

The requirement to exclude clergy and religious teachings from a school to be established under the government’s authority was unprecedented; and when Webster addressed the Supreme Court, what from others might have been nothing more than a dry legal argument, from his lips became an emotional appeal on the importance of preserving religious instruction at the school.

Daniel Webster’s Legal Argument, a Stirring Emotional Appeal for the Importance of Religious Instruction in School

His argument before the court lasted three days, throughout which time he repeatedly attacked the school for its anti-Christian posture, telling the court:

“The plan of education proposed by Mr. Girard is derogatory to the Christian religion, tends to weaken men’s reverence for that religion and their conviction of its authority and importance, and therefore in its general character tends to mischievous and not to useful ends. The proposed school is to be founded on plain and clear principles, and for plain and clear objects of infidelity. . . . When little children were brought into the presence of the Son of God, His disciples proposed to send them away, but He said, “Suffer little children to come unto Me” [Mt.19:14] “Unto Me!” . . . He opened at once to the youthful mind the everlasting fountain of living waters—the only source of eternal truths: “Suffer little children to come unto Me.” And that injunction is of perpetual obligation. It addresses itself today with the same earnestness and the same authority which attended its first utterance to the Christian world. It is of force everywhere and at all times. It extends to the ends of the earth; it will reach to the end of time, always and everywhere sounding in the ears of men with an emphasis which no repetition can weaken and with an authority which nothing can supersede: “Suffer little children to come unto Me.” . . . I blame not Mr. Girard because he desired to raise a splendid marble palace. . . . But his school of learning is not to be valued because it has not the chastening influences of true religion—because it has no fragrance of the spirit of Christianity.”

Webster opposed any plan of education that forbade children to “come unto Him” at school. Significantly, the city’s attorneys agreed that religion must be taught at the school, telling the court:

“The purest principles of morality are to be taught. Where are they found? Whoever searches for them must go to the source from which a Christian man derives his faith—the Bible. . . . There is an obligation to teach [in the school] what the Bible alone can teach, viz. a pure system of morality.”

The Unanimous Supreme Court Ruling:

After the arguments were finished, the unanimous opinion of the Supreme Court was delivered by Justice Joseph Story, a “Father of American Jurisprudence” who had been placed on the court by President James Madison. The court ruled that Christianity could not be excluded from the school:

“Christianity . . . is not to be maliciously and openly reviled and blasphemed against to the annoyance of believers or the injury of the public. . . . It is unnecessary for us, however, to consider . . . the establishment of a school or college for the propagation of . . . Deism or any other form of infidelity.  Such a case is not to be presumed to exist in a Christian country.

The court then pointed out that even though the will had prohibited clergy, it had not explicitly prohibited Christian instruction and was therefore constitutionally acceptable. As the court explained:

“Why may not laymen instruct in the general principles of Christianity as well as ecclesiastics [the clergy]. . . . And we cannot overlook the blessings which such [lay]men by their conduct as well as their instructions may—nay, must impart to their youthful pupils. Why may not the Bible, and especially the New Testament without note or comment, be read and taught as a Divine revelation in the college—its general precepts expounded, its evidences explained and its glorious principles of morality inculcated? . . . Where can the purest principles of morality be learned so clearly or so perfectly as from the New Testament? Where are benevolence, the love of truth, sobriety, and industry so powerfully and irresistibly inculcated as in the Sacred Volume?”

Many legal controversies had marked the case, but on the issue of Christian teachings in this government-run school, all parties had agreed: the plaintiff’s lawyers had said that education without Christianity was “repugnant”; the city’s lawyers had declared it “obnoxious”; and the Supreme Court said that it couldn’t be permitted—that Biblical and Christian principles must be taught in schools.

There’s Not Much that Makes Jesus Angry and Outraged, but This Does!

Webster had based his argument on Jesus’ declaration in Mt.19:14 to “Suffer little children . . . to come unto Me” (he was quoting from the King James Version). Modern versions translate this phrase as “Do not hinder them from coming to Me” (Mt.19:14) or “Permit the children to come to Me” (Lk.18:16), but Mk.10:14 adds another element, with the Scripture recording: “When Jesus saw this [the children being stopped from coming to Him], He was indignant and said to them, ‘Permit the children to come to Me; do not hinder them.’ ” Notice that at attempts to prevent children from coming to Him, Jesus was “indignant”—that is, by definition, He was angry and outraged.

The Misguided Efforts in Today’s American Education

With so much of our American education today deliberately and even stridently working to keep God out of the public school system, the misguided efforts to produce a religiously neutral environment actually impose a godless one.  As opposed to promoting freedom allowing for inquiry and guidance, their religious intolerance prevents children from coming to Him at school. But in previous generations, the U.S. Supreme Court delivered a unanimous ruling in the opposite direction, thus preserving the Bible and Christian principles as an integral part of a sound American education. Permit the children to come.

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Scopes Monkey Trial

This trial was an important educational milestone regarding the teaching of the theory of evolution in public schools. Scopes, who was conned into being the accused teacher (claims he never even taught the theory), pitted two famous barristers of the day—William Jennings Bryan and Clarence Darrow—against each other. The basic argument of the American Civil Liberties Union (ACLU) and the evolutionists’ was that evolutionary theory should not be censored from the public schools. The defense withdrew before the trial ended because they knew they were going to lose the trial, having just put the beloved Bryan on the stand to humiliate him and Christianity, also bowed out before he could be cross-examined.  Continue Reading…

Roe v. Wade

In 1970, Norma McCorvey, under the pseudonym “Jane Roe,” filed a law suit challenging the Texas laws that criminalized abortion. The “Roe” of that case is described as a pregnant woman who “wished to terminate her pregnancy by an abortion ‘performed by a competent, licensed physician, under safe, clinical conditions’; that she was unable to get a ‘legal’ abortion in Texas…” Her attorneys, looking to further their own agenda, claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy. Norma, who says she was misled and a dupe for her attorneys, never had an abortion and gave her baby up for adoption. She’s now a pro-life activist. On January 22, 1973, the Supreme Court handed down its decision in Roe v. Wade and Doe v. Bolton. In Roe, the Court struck down a Texas abortion law. In Doe, the Court threw out the restrictions on abortion in a more liberal Georgia law. The combined result overturned the laws that restricted abortion in every state. Read More…

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