Magazine | April 18, 2011, Issue


Who Will Review the Judicial Reviewers?

In his reply to Pamela K. Grow’s letter concerning nullification, Allen C. Guelzo states, correctly, “If the founders had wanted to grant nullifying power — to the states or any other body — they would have had more than sufficient opportunity to include it in the Constitution.” In the same reply he also writes, “That determination lies in the hands of the courts, under the principle of judicial review.”

But judicial review is no more present in the Constitution than is nullification, and the founders had as much opportunity to include it. Even the framers who supported judicial review understood that the mere creation of a federal judiciary (there was none under the Articles of Confederation) was considered radical by large numbers of states’-rights advocates. To grant those courts the power of judicial review would have been to doom the Constitution’s ratification.

Guelzo correctly cites the Supreme Court’s decisions rather than the Constitution as the source of the power of judicial review, but does not seem to notice the problematic nature of these decisions: One cannot cite oneself as the source of one’s authority. Indeed, the Court was so acutely aware that most Americans did not believe it possessed the power of judicial review that it used that power only twice before the Civil War (once in the disastrous Dred Scott decision).

The American people certainly never intended to grant a body of unelected, life-tenured appointees absolute power over our laws. This is not only undemocratic but unrepublican. The mechanisms the founders inserted in the Constitution as bulwarks against majority tyranny allow one part of the government to check another; they do not allow a single branch to have absolute power over all of the nation’s laws. As Thomas Jefferson noted, this is oligarchy, not republicanism.

Carl J. Richard

Department of History, University of Louisiana at Lafayette

Allen C. Guelzo replies: Allen C. Guelzo replies: Professor Richard is correct in one respect: Judicial review, in the specific sense of the Supreme Court’s having authority to review federal legislation, is not specified in the Constitution.

But if the Supreme Court cannot review the acts of the legislature and the executive, then who can? In order for checks and balances to work, someone must do the checking. If there should be no review power located in any branch, then whence comes the balance?

The Confederacy is an example of precisely this problem: The Confederate congress balked at the notion of judicial review, and so the Confederate supreme court was never organized (although the Confederate constitution provided for it). Far from relieving a problem, this only created incessant warfare between the legislative and the executive, and resulted in Jefferson Davis’s exercising unilateral power without any check or balance.

Who, then, should review the judicial reviewers? The answer is the ultimate locus of sovereignty, the people themselves. If they find an act of judicial review in error, their mandate is to amend the Constitution.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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