Last Updated on July 11, 2022 by Constitutional Militia
“Judicial Supremacy”: Nowhere to be found in the Constitution or Pre-constitutional History
Pre-constitutional history provides no support for the sweeping contemporary claim that “the federal judiciary is supreme in the exposition of the law of the Constitution” as against Congress, the President, and WE THE PEOPLE under all conceivable circumstances, and that therefore “the interpretation of the [Constitution] enunciated by th[e Supreme] Court [in some particular litigation] * * * is the supreme law of the land” in the same sense that the Constitution itself is—or even in the superior sense of the arrogant boast that “the Constitution is what the judges say it is”.
“Judicial Review” and the purported power of “Judicial Supremacy”
The modern doctrine of “judicial review” purports to invest the judiciary with what amounts to, not only an advisory, even prescriptive and proscriptive power with respect to constitutional interpretation—that is, a power to render an interpretation of the Constitution in the course of deciding a particular “Case[ ]” or “Controvers[y]” involving parties other than Congress or the President, which interpretation thereafter purportedly lines those coördinate Branches of government in all other conceivable situations until the Court deigns to reverse or qualify it. This supposed ability to foreclose the coördinate branches of government in the course of litigation not involving them allegedly renders the Court the “ultimate interpreter of the Constitution”. But where does this extraordinary power come from?
The Constitution nowhere provides in specific terms, or by any obvious implication, for “judicial review” of constitutional issues in this latitudinarian sense. That the Supreme Court may engage in a narrow form of “judicial review” when a constitutional question arises adventitiously in a “Case[ ]” or Controvers[y]” otherwise within the “judicial Power” does not compel the conclusion that decision of such a question must, or even can, bind anyone other than the actual litigants. And, from time to time, the court has admitted that true “judicial review” “is not the exercise of a substantive power to review and nullify acts of Congress, for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of the case or controversy properly before the court”.
“The functions of government under our system are apportioned. To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts. The general rule in that neither department may invade the province of the other and neither may control, direct or restrain the action of the other. * * * We have no power per se to review and annul acts of Congress on the ground that there are unconstitutional. That question may be considered only when the justification for some direct inquiry suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of the legal right.”
Indeed, how a decision in a particular “Case[ ]” or “Controvers[y]” could bind coördinate, coequal Branches of the government, themselves not parties to litigation, without an explicit constitutional mandate extending the “judicial Power” to (and, effectively, over) them, or a general pre-constitutional understanding that “judicial power” inherently entails such a result, defies explanation.
As every student of “judicial review” is aware, the twists and turns of “the living Constitution” depend, not upon the words of the Constitution, objectively defined, but instead upon the subjective attitudes of the jurists who happen to be living and serving on the Bench when the Court hands down its next oracular pronouncement. Nonetheless, the precedent now “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need”.
The plausibility of constitutional review by Congress and the President, as well as the Supreme Court, is far greater than the plausibility of exclusive “judicial review”. For WE THE PEOPLE directly elect Congress and the President. Bills passed by Congress and signed by the President have the approval of two of the three coördinate Branches of the national government; and bills passed by Congress over a presidential veto have the approval of two thirds of WE THE PEOPLE’S representatives—whereas, a decision of the Supreme Court can be the product of the eccentric opinion of a single justice who swings a majority one way or the other.