Does the Supreme Court have the power of Judicial Review?
The short answer to this question is a flat out NO. To further understand why the Supreme Court does not have the power of “Judicial Review”, we need to dive in to the supreme law of the land otherwise known as the United States Constitution.
I need to ask everyone to please bear with me, there is a lot of information to cover in order to fully understand the judicial power grab, its dangers and who actually has the power of judicial review.
First and foremost, lets understand what “Judicial Review” is.
What is Judicial Review?
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. A court with judicial review power may invalidate laws and decisions that are incompatible with a higher authority, such as the terms of a written constitution.
This leads to the Supreme Court 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.
Now that we have that out of the way we need to take a look at the United States Constitution and see what it has to say. Article III of the US Constitution establishes the judicial branch of the Federal Government.
ARTICLE III of the United States Constitution:
“Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
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.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”
As you can plainly see the judicial branch was not given the power of judicial review.
How did the Supreme Court get the power of Judicial Review?
Since the constitution does not give this power to the court, how did it come to be that the court assumed this responsibility? Truth be known, the court just started doing it and no one has put a stop to it.
This assumption of power first appeared 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.
Chief Justice John Marshall used Marbury to provide a rationale for Judicial Review.,
“It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.”
This statement, justifying the duty of the Supreme Court to engage in Judicial Review and strike down unconstitutional laws, remains in force today and has made Marbury v. Madison a landmark Supreme Court decision.
Most people incorrectly believe that the Constitution granted this power to the federal judiciary.
The dangers of the judicial branch wielding the power of judicial review.
Please stay with me, I know there is a lot of info hear but I feel it is necessary to fully understand this Judicial Overreach/Power Grab.
- 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).
- The “judicial review” paradigm allows the government to make its own rules with no say by the original rule-makers — the states.
I know that was a mouth full but I really felt it important enough to list.
Who actually has the power of Judicial Review?
We need not look any further than the Tenth Amendment,
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The power of judicial review is left to the states and to the people as it is not delegated in the Constitution to any of the bodies of government.
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.
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.
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!
Thank you for taking the time to read this article.
I plan on releasing another article on and about the Seventeenth Amendment and how it undermines the power of the states.