In America, judicial review refers to a court’s examining an act of government to determine if it conflicts with the Constitution and, if it so finds, declaring the act invalid and unenforceable. The acts of government subject to judicial review include statutes passed by legislatures, as well as actions taken by other branches of government, such as law enforcement agencies. The ultimate arbiter of any act’s constitutionality is the Supreme Court.
Judicial review, at least when applied to laws passed by legislatures, clearly is undemocratic. It allows a mere five persons on the Supreme Court to overturn a law passed by a body of representatives elected by and accountable to the people. Although judicial review does not allow a court to enact a law, striking down a law is by itself an audacious exercise of power because it thwarts the will of the people. Not surprisingly, Abraham Lincoln said this about judicial review: “If the policy of the Government upon the 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.”
Its undemocratic nature, then, raises the question: Is judicial review of statutes morally legitimate, and if so, on what grounds? The standard rationale for it was offered by Chief Justice John Marshall in his opinion for the Supreme Court in Marbury v. Madison (1803): The Constitution is the supreme law of the land, and any other law that conflicts with it should not stand. He wrote that there is a “principle ... essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by the instrument.” Because Marshall implied that “the principle” only applies if there is a written constitution, he did limit the exercise of judicial review in one way: Courts should not use it to protect unwritten natural rights or moral values.
Marshall, however, failed to go on and address the crucial question: How can judges know what the Constitution means? It is not enough to say, as do most nominees to judgeships, that a judge should base her or his decisions on the written text of the Constitution. This will not suffice because text (words), with few exceptions, can be differently interpreted by different persons. Which interpretation, therefore, of a constitutional provision is the correct one?
Unless there is a convincing, objective answer to the preceding question or a way of answering it, what the Constitution forbids simply is “up for grabs,” and one judge’s interpretation is just as good (or bad) as another’s is. Absent a valid, objective method of constitutional interpretation, judges, under the guise of following the Constitution, will decide cases on the basis of their personal preferences or ideology. Or, as a former chief justice of the Supreme Court stated, “the Constitution is what the judges say it is.” If this is true, however, judicial review morally is suspect.
For this reason many legal scholars and judges have been attracted to originalism: the idea that a constitutional provision should be interpreted to mean what it originally meant to the educated public at the time of its ratification. Originalism, however, while appealing at first, itself is problematic. There are different theories or kinds of originalism; which one is preferable and why? Moreover, a constitutional provision’s original meaning might be as unclear as its wording is, which allows judges to choose the original meaning most consistent with their own values or ideology.
If not originalism, however, what method of constitutional interpretation should be used by judges when they practice judicial review? Unless there is a clear and compelling answer to this question, judicial review cannot be justified, and laws enacted by the people’s representatives should be upheld by courts.
Given its importance, this question of how the Constitution should be interpreted should be put to all persons nominated to hold judgeships, including the current nominee to the Supreme Court, Judge Amy Coney Barrett. Unfortunately, the senators who must confirm Barrett failed to ask her this question, because apparently they only are interested in her position on current issues, such as abortion, the Affordable Care Act and same-sex marriage. Questioning her about these matters, of course, only has served to reinforce the perception that justices are partisan or political creatures, not objective, impartial interpreters of the Constitution. Is this how senators view the justices? If so, then they should ask Barrett (and themselves) if and how judicial review can be justified.
Ellis M. West is emeritus professor of political science at the University of Richmond and author of “The Free Exercise of Religion in America: Its Original Constitutional Meaning” (2019). Contact him at: email@example.com