Academic journal article Constitutional Commentary

Rethinking Judicial Supremacy

Academic journal article Constitutional Commentary

Rethinking Judicial Supremacy

Article excerpt

The Supreme Court's recent decision in Obergefell v. Hodges (1) provides a particularly impressive demonstration of both the power of the Supreme Court and of the fact that it is based entirely on a ruse. Even for Americans unfortunately grown used to having radical cultural changes decreed by the Court, it should be impressive that the Court could by a margin of one vote decree that "marriage" no longer means the union of one man and one woman and deprive fifty state legislatures and Congress of the power to have it retain that meaning. At the same time, it could hardly be clearer that the decision, as Chief Justice Roberts pointed out in dissent, has nothing to do with the Constitution. (2) It is an egregious example of the Court's usurpation of legislative authority. To accept it without protest is in effect to accept a change in our form of government, from the system of representative self-government in a federalism with separation of powers created by the Constitution to government, to a large extent, by the Supreme Court. If leaving the final decision on basic issues of domestic social policy to the Court is seen as an improvement on the constitutional system, it should at least be openly identified and justified as such, not put forth as required by the Constitution. Obergefell presents an apt and timely occasion to reconsider the basis of the Court's current role in our system of government, the power of constitutional judicial review.

Constitutional judicial review is the extraordinary power of judges to invalidate policy choices made by other officials of government on the ground that they are prohibited by the Constitution. Evaluation of the power should begin with recognition that all constitutional restrictions on policy choices by government are problematic in a democracy in that their effect is to substitute policy choices made by people in the past for the different choices preferred by people of today. It is not rational to decide a current issue of public policy, for example gun control, by seeking to determine the views of people from a time when many of the relevant considerations, including the nature of guns, were very different. Further, many constitutional restrictions, such as the "natural born Citizen" requirement for the presidency, (3) often serve only to needlessly create problems. If the norm is self-government, constitutional restrictions should be disfavored, not expanded or multiplied.

The principal problem with the power of judicial review, however, is not judicially enforced constitutionalism, which raises the problem of rule by the dead, but judges abusing the power by holding unconstitutional policy choices that the Constitution does not clearly forbid, which raises the problem of rule by judges. The Constitution, a very short document, was wisely meant to preclude very few policy choices. (4) Most constitutional cases involve state, not federal, law and nearly all of them purport to be based, like Obergefell, on a single sentence of the Fourteenth Amendment, which the Court has wrongfully converted from a guarantee of basic civil rights to blacks to a grant of virtually unlimited policymaking power. (5) The Court thereby gave itself the power to remove from the ordinary political process any policy issue (libel law, term limits, abortion) it chose and assign it to itself for final decision. The result is to make the Court the most powerful institution of American government in terms of domestic social policy, thereby depriving the states of the "Republican Form of Government" guaranteed them by the Constitution (6) and undermining representative self-government by giving citizens less and less reason to participate in the political process.

The effect, as Judge Learned Hand famously protested, is to create a system of government similar to Plato's government by philosopher kings (7) except with the philosophers replaced (unfortunately) by lawyers to maintain the fiction that the decisions are based on the Constitution. …

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