The Constitution and Judicial Review

The Senate Judiciary Committee hearings on President Bush's nomination of Judge Samuel A. Alito to the Supreme Court are scheduled to begin on January 9, 2006.  The central focus of the hearings will be on Judge Alito's 'judicial philosophy,' that is, on how he conceives of the nature of the Constitution and the role of the Supreme Court in interpreting and applying its provisions to contemporary legal problems.  The purpose of this essay is to offer some preliminary thoughts on these topics and to provide a useful framework for evaluating the arguments made by both sides in what is shaping up to be a contentious nomination process. 

Let's begin by looking at a recent Supreme Court decision that generated enormous controversy, Lawrence v. Texas (2003), in which the Court ruled that 'a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct' was unconstitutional.  The Court's opinion in Lawrence was written by Justice Kennedy and joined by Justices Stevens, Souter, Ginsburg, and Breyer.  Justice O'Connor concurred in the result.  Chief Justice Rehnquist and Justices Scalia and Thomas dissented.

The Supreme Court's ruling in Lawrence effectively overturned all state and local laws that prohibit private, noncommercial homosexual conduct.  The point of this example is not to examine the merits, or lack thereof, of the Court's decision in Lawrence.  (Justice Scalia's dissenting opinion is a masterpiece that cannot be improved upon.  Like Justice Thomas, however, '[i]f I were a member of the Texas legislature, I would vote to repeal' the statute at issue in Lawrence.)  Rather, I want to ask a more fundamental question:  Whence comes this power of five (or more) Supreme Court justices to invalidate the laws passed by state and local legislatures?

It is axiomatic that ours is 'a government of laws, and not of men.'  Yet a handful of Supreme Court justices sitting in Washington, D.C., have the power to declare the laws passed by any of the nation's democratically—elected legislatures, including Congress, null and void.  This extraordinary power is not the result of the justices' superior wisdom and intellect (as any law professor will eagerly attest!).  Nor does it derive from the justices' popularity among the people, which public opinion polls show is steadily waning, or from the justices' ability to enforce their own orders, which can only be enforced by the executive branch.  See, e.g., the Little Rock Crisis of 1957.  In short, the nine members of the Supreme Court are neither Solons nor Caesars.  Instead, their power comes from the very document that created their institution in the first place:  the United States Constitution.

Article III, Section 1, of the Constitution provides that

'[t]he 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.'

From the very beginning, it has been understood that this 'judicial Power' includes the power 'to declare all acts contrary to the manifest tenor of the Constitution void.'  These words come from Federalist No. 78, in which Alexander Hamilton explained that the role of the judiciary 'in a limited Constitution' is 'to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits of their authority.'  Thus,

'where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, . . . it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.'

As Hamilton's words make clear, the doctrine of judicial review — whereby a legislative act that is contrary to the Constitution will be 'disregard[ed]' by the courts — ultimately is founded on the concept of popular sovereignty, i.e., rule by the people.  Not rule by an aristocracy, or an oligarchy, or a dictator.  This is the bedrock principle of American government.  Recall Abraham Lincoln's Gettysburg Address, wherein Lincoln spoke of 'government of the people, by the people, and for the people.'  What does this mean?  Above all, it means that 'the people' are the supreme political authority from which all legitimate government derives.  As expressed in the Declaration of Independence, it is the 'Right of the People' to 'institute' their own government,

'laying its Foundation on such Principles and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.'

The Constitution represents the American people's exercise of this original, natural right to establish their own government.  It thus constitutes the nation's 'fundamental law' (in Hamilton's words) and, by theory and design, takes precedence over all other laws.  As Chief Justice John Marshall explained in Marbury v. Madison (1803),

'all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.' 

Indeed, the Constitution itself declares (in Article VI) that it is the 'supreme Law of the Land.'  Accordingly, where any law — federal, state, or local — conflicts with the requirements of the Constitution, such law is, and must be, void.  This is true regardless of the subject matter of the law, or the specific provision of the Constitution it violates, or even how popular the law is with the public.  On the other hand, where the Constitution does not address a particular issue, it does not, and cannot, override the ordinary democratic political process.

It is clear, therefore, that the key question is always:  What does the Constitution require?  As a general proposition, the Constitution requires what the people who ratified it intended it to require.  Logically and historically, it can have no other meaning.  For the very purpose of the Constitution was, and is, to establish the nation's 'fundamental law,' i.e., the principles and rules that govern the lives of the people living in this country. 

It is nonsensical to suppose that the American people, in adopting the Constitution (including the amendments), did not know what they were adopting, that is, did not know the principles and rules that they were agreeing would be binding on themselves and their posterity.  Of course, from our contemporary perspective, the actual content of these principles and rules (in Hamilton's words, their 'manifest tenor') may be more or less difficult to determine in any particular case, but the basic point remains the same:  The Constitution reflects a specific and concrete set of political commitments made by the American people in their sovereign capacity.  These commitments, and only these commitments, represent the supreme law of the land that trumps the ordinary democratic political process.

From the above discussion, it necessarily follows that a law is 'unconstitutional' where, and only where, it conflicts with the specific political commitments made by the American people in the Constitution.  For example, the Constitution requires that a member of the House of Representatives be at least 25 years old.  See Art. I, Sec. 2.  Hence, it would be unconstitutional for Congress or the states to pass a law allowing 21—year—olds to serve in the House, however reasonable such a law might be.  If the American people want 21—year—olds to be able to serve in the House, then they must first pass a constitutional amendment (pursuant to Article V of the Constitution) lowering the minimum age from 25 to 21.  This would be true even if 100% of the American people were in favor of such a law, or if all fifty states had passed similar laws, or if the minimum age for serving in various European parliaments was also 21.  The only consideration that matters is what the Constitution itself requires.

Significantly, the Constitution's organic limitations on the power of Congress and the states apply with just as much force to the courts.  As Chief Justice Marshall emphasized in Marbury, 'courts, as well as other departments, are bound by that instrument.'  Thus, to continue with the above example, it would be equally unconstitutional for the Supreme Court to declare that 21—year—olds should be allowed to serve in the House of Representatives, say, on the grounds that the Constitution's 'due process' and 'equal protection' clauses, when interpreted in light of our 'evolving' standards of political equality, outweigh the specific age limitations imposed by our long—dead ancestors who were acting in a different historical and social context.  After all, if 21—year—olds can vote, get drafted, and are required to pay taxes, shouldn't they be allowed to serve in the very government making these decisions?  Sounds reasonable, perhaps.  But it is not constitutional — even if five (or more) justices of the Supreme Court say it is.  While this may appear to be an 'easy' example, it illustrates the mode of analysis that properly applies to all cases and to all provisions of the Constitution.

Admittedly, certain provisions of the Constitution — especially the afore—mentioned due process and equal protection clauses — are not as self—explanatory as others.  Nevertheless, these provisions, no less than the provision imposing a 25—year age limit for service in the House of Representatives, reflect a specific and concrete set of political commitments made by the American people in their sovereign capacity.  While it may be difficult in certain cases to determine what these provisions require, it cannot be denied that the American people intended them to require something.

Certainly, there is no historical or philosophical support for the notion that the American people intended these provisions to be mere slogans to be 'interpreted' in whatever ways their governmental representatives, including the Supreme Court, desire.  As Hamilton wrote in Federalist No. 78: 

'To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; [and] that the representatives of the people are superior to the people themselves.' 

(For my previous essay discussing the nature of constitutional interpretation, see here.) 

In sum, the only valid basis for the Supreme Court (or any other court) to declare a law unconstitutional is where such law conflicts with the actual political commitments made by the American people in the Constitution itself.  Anything else constitutes judicial usurpation of the American people's power to determine their own form of government.  If the Constitution, in its present form, is deemed inadequate or incomplete by the American people today, then it is their right — the 'Right of the People' — to amend the Constitution in such ways 'as to them shall seem most likely to effect their Safety and Happiness.'  Or as Justice Kennedy wrote, rather less memorably, in his majority opinion in Lawrence:  'As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.'

However, nothing in the Constitution empowers the nine justices of the Supreme Court to make these decisions for the rest of us.  To the extent they purport to do so — as the majority clearly did in Lawrence — their actions are illegitimate and unconstitutional.  This, undoubtedly, is a difficult conclusion for many people to accept.  But constitutional democracy is a difficult form of government.  Indeed, the question at the heart of the ongoing battle over President Bush's Supreme Court nominations is whether the United States will remain a constitutional democracy in the future, or whether we will continue our long, sad slide towards government by judicial decree. 

Steven M. Warshawsky frequently comments on politics and current affairs from a conservative perspective.  He can be reached at smwarshawsky@hotmail.com.

The Senate Judiciary Committee hearings on President Bush's nomination of Judge Samuel A. Alito to the Supreme Court are scheduled to begin on January 9, 2006.  The central focus of the hearings will be on Judge Alito's 'judicial philosophy,' that is, on how he conceives of the nature of the Constitution and the role of the Supreme Court in interpreting and applying its provisions to contemporary legal problems.  The purpose of this essay is to offer some preliminary thoughts on these topics and to provide a useful framework for evaluating the arguments made by both sides in what is shaping up to be a contentious nomination process. 

Let's begin by looking at a recent Supreme Court decision that generated enormous controversy, Lawrence v. Texas (2003), in which the Court ruled that 'a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct' was unconstitutional.  The Court's opinion in Lawrence was written by Justice Kennedy and joined by Justices Stevens, Souter, Ginsburg, and Breyer.  Justice O'Connor concurred in the result.  Chief Justice Rehnquist and Justices Scalia and Thomas dissented.

The Supreme Court's ruling in Lawrence effectively overturned all state and local laws that prohibit private, noncommercial homosexual conduct.  The point of this example is not to examine the merits, or lack thereof, of the Court's decision in Lawrence.  (Justice Scalia's dissenting opinion is a masterpiece that cannot be improved upon.  Like Justice Thomas, however, '[i]f I were a member of the Texas legislature, I would vote to repeal' the statute at issue in Lawrence.)  Rather, I want to ask a more fundamental question:  Whence comes this power of five (or more) Supreme Court justices to invalidate the laws passed by state and local legislatures?

It is axiomatic that ours is 'a government of laws, and not of men.'  Yet a handful of Supreme Court justices sitting in Washington, D.C., have the power to declare the laws passed by any of the nation's democratically—elected legislatures, including Congress, null and void.  This extraordinary power is not the result of the justices' superior wisdom and intellect (as any law professor will eagerly attest!).  Nor does it derive from the justices' popularity among the people, which public opinion polls show is steadily waning, or from the justices' ability to enforce their own orders, which can only be enforced by the executive branch.  See, e.g., the Little Rock Crisis of 1957.  In short, the nine members of the Supreme Court are neither Solons nor Caesars.  Instead, their power comes from the very document that created their institution in the first place:  the United States Constitution.

Article III, Section 1, of the Constitution provides that

'[t]he 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.'

From the very beginning, it has been understood that this 'judicial Power' includes the power 'to declare all acts contrary to the manifest tenor of the Constitution void.'  These words come from Federalist No. 78, in which Alexander Hamilton explained that the role of the judiciary 'in a limited Constitution' is 'to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits of their authority.'  Thus,

'where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, . . . it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.'

As Hamilton's words make clear, the doctrine of judicial review — whereby a legislative act that is contrary to the Constitution will be 'disregard[ed]' by the courts — ultimately is founded on the concept of popular sovereignty, i.e., rule by the people.  Not rule by an aristocracy, or an oligarchy, or a dictator.  This is the bedrock principle of American government.  Recall Abraham Lincoln's Gettysburg Address, wherein Lincoln spoke of 'government of the people, by the people, and for the people.'  What does this mean?  Above all, it means that 'the people' are the supreme political authority from which all legitimate government derives.  As expressed in the Declaration of Independence, it is the 'Right of the People' to 'institute' their own government,

'laying its Foundation on such Principles and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.'

The Constitution represents the American people's exercise of this original, natural right to establish their own government.  It thus constitutes the nation's 'fundamental law' (in Hamilton's words) and, by theory and design, takes precedence over all other laws.  As Chief Justice John Marshall explained in Marbury v. Madison (1803),

'all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.' 

Indeed, the Constitution itself declares (in Article VI) that it is the 'supreme Law of the Land.'  Accordingly, where any law — federal, state, or local — conflicts with the requirements of the Constitution, such law is, and must be, void.  This is true regardless of the subject matter of the law, or the specific provision of the Constitution it violates, or even how popular the law is with the public.  On the other hand, where the Constitution does not address a particular issue, it does not, and cannot, override the ordinary democratic political process.

It is clear, therefore, that the key question is always:  What does the Constitution require?  As a general proposition, the Constitution requires what the people who ratified it intended it to require.  Logically and historically, it can have no other meaning.  For the very purpose of the Constitution was, and is, to establish the nation's 'fundamental law,' i.e., the principles and rules that govern the lives of the people living in this country. 

It is nonsensical to suppose that the American people, in adopting the Constitution (including the amendments), did not know what they were adopting, that is, did not know the principles and rules that they were agreeing would be binding on themselves and their posterity.  Of course, from our contemporary perspective, the actual content of these principles and rules (in Hamilton's words, their 'manifest tenor') may be more or less difficult to determine in any particular case, but the basic point remains the same:  The Constitution reflects a specific and concrete set of political commitments made by the American people in their sovereign capacity.  These commitments, and only these commitments, represent the supreme law of the land that trumps the ordinary democratic political process.

From the above discussion, it necessarily follows that a law is 'unconstitutional' where, and only where, it conflicts with the specific political commitments made by the American people in the Constitution.  For example, the Constitution requires that a member of the House of Representatives be at least 25 years old.  See Art. I, Sec. 2.  Hence, it would be unconstitutional for Congress or the states to pass a law allowing 21—year—olds to serve in the House, however reasonable such a law might be.  If the American people want 21—year—olds to be able to serve in the House, then they must first pass a constitutional amendment (pursuant to Article V of the Constitution) lowering the minimum age from 25 to 21.  This would be true even if 100% of the American people were in favor of such a law, or if all fifty states had passed similar laws, or if the minimum age for serving in various European parliaments was also 21.  The only consideration that matters is what the Constitution itself requires.

Significantly, the Constitution's organic limitations on the power of Congress and the states apply with just as much force to the courts.  As Chief Justice Marshall emphasized in Marbury, 'courts, as well as other departments, are bound by that instrument.'  Thus, to continue with the above example, it would be equally unconstitutional for the Supreme Court to declare that 21—year—olds should be allowed to serve in the House of Representatives, say, on the grounds that the Constitution's 'due process' and 'equal protection' clauses, when interpreted in light of our 'evolving' standards of political equality, outweigh the specific age limitations imposed by our long—dead ancestors who were acting in a different historical and social context.  After all, if 21—year—olds can vote, get drafted, and are required to pay taxes, shouldn't they be allowed to serve in the very government making these decisions?  Sounds reasonable, perhaps.  But it is not constitutional — even if five (or more) justices of the Supreme Court say it is.  While this may appear to be an 'easy' example, it illustrates the mode of analysis that properly applies to all cases and to all provisions of the Constitution.

Admittedly, certain provisions of the Constitution — especially the afore—mentioned due process and equal protection clauses — are not as self—explanatory as others.  Nevertheless, these provisions, no less than the provision imposing a 25—year age limit for service in the House of Representatives, reflect a specific and concrete set of political commitments made by the American people in their sovereign capacity.  While it may be difficult in certain cases to determine what these provisions require, it cannot be denied that the American people intended them to require something.

Certainly, there is no historical or philosophical support for the notion that the American people intended these provisions to be mere slogans to be 'interpreted' in whatever ways their governmental representatives, including the Supreme Court, desire.  As Hamilton wrote in Federalist No. 78: 

'To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; [and] that the representatives of the people are superior to the people themselves.' 

(For my previous essay discussing the nature of constitutional interpretation, see here.) 

In sum, the only valid basis for the Supreme Court (or any other court) to declare a law unconstitutional is where such law conflicts with the actual political commitments made by the American people in the Constitution itself.  Anything else constitutes judicial usurpation of the American people's power to determine their own form of government.  If the Constitution, in its present form, is deemed inadequate or incomplete by the American people today, then it is their right — the 'Right of the People' — to amend the Constitution in such ways 'as to them shall seem most likely to effect their Safety and Happiness.'  Or as Justice Kennedy wrote, rather less memorably, in his majority opinion in Lawrence:  'As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.'

However, nothing in the Constitution empowers the nine justices of the Supreme Court to make these decisions for the rest of us.  To the extent they purport to do so — as the majority clearly did in Lawrence — their actions are illegitimate and unconstitutional.  This, undoubtedly, is a difficult conclusion for many people to accept.  But constitutional democracy is a difficult form of government.  Indeed, the question at the heart of the ongoing battle over President Bush's Supreme Court nominations is whether the United States will remain a constitutional democracy in the future, or whether we will continue our long, sad slide towards government by judicial decree. 

Steven M. Warshawsky frequently comments on politics and current affairs from a conservative perspective.  He can be reached at smwarshawsky@hotmail.com.