Magazine article The World and I

Judicial Review and the Supreme Court - Judicial Review Is an Essential Function Extended to the Supreme Court under Our System of Government

Magazine article The World and I

Judicial Review and the Supreme Court - Judicial Review Is an Essential Function Extended to the Supreme Court under Our System of Government

Article excerpt

Walter Berns is John M. Olin Professor at Georgetown University and adjunct scholar at the American Enterprise Institute.

In a recent speech, Harvard law professor Archibald Cox acknowledged that the Supreme Court had succeeded in making the Constitution into an "instrument of massive reforms." Leaving aside his notion of reform, this is an accurate enough characterization of what at least some of the justices have been doing, or trying to do, since the advent of the Warren Court in 1953, but it will not do as a statement of the role the framers of the Constitution expected the Court to play. The framers saw themselves as the reformers--see, for example, the last paragraph of Federalist 14--and they expected the justices to be the custodians to the Constitution in which those reforms were embodied.

This view was shared by Alexis de Tocqueville, the most perceptive observer of the American democracy and one of the first to call attention to the extraordinary powers of the American judiciary. Like the framers, Tocqueville saw the judicial power as an important and probably essential means of promoting and preserving a respect for constitutionalism or limited government, which in the American case means government limited mainly by its forms: by due process of law, for example, and by the formal process by which laws are enacted in the first place. "Men living in democratic ages do not readily comprehend the utility of forms," he wrote, but for the preservation of freedom, such forms are essential. Due process serves to protect the guilty from the lynch mob and the innocent from any punishment at all; and the formal legislative process serves as a check on popular majorities. As Tocqueville put it, forms are barriers between the strong and the weak, the majority and the minorities; they serve as a means of constitutionalizing and thereby limiting democracy. It was in this respect--in the words of Federalist 78, as "faithful guardians of the Constitution" against violations instigated by popular majorities--that the power exercised by the judiciary could be said to be political as Tocqueville understood it. America was a democratic country, but the nondemocratic judiciary and its power to declare laws unconstitutional made it possible for the country to be governed according to the formal rules set down in the Constitution. In this fashion, and without a House of Lords or any other admixture of aristocracy, the U.S. Constitution was made to resemble (to some extent at least) a mixed regime in the traditional sense of that term.


Tocqueville thought this remarkable--that is, I mean, worthy of being remarked upon. Why should a democracy accept these restrictions on its powers--especially in an age when (and particularly in a country where) principles of legitimacy that were undemocratic had lost their authority? Tocqueville believed that they were accepted because of the manner in which they were imposed: not as part of the political or legislative process but, rather, as part of the judicial or legal process, a process that was nominally apolitical. The antidemocratic restraints were somehow camouflaged, or, as Tocqueville put it, concealed in the judicial power:

If the judge had been empowered to contest the law on the ground of theoretical generalities, if he were able to take the initiative and to censure the legislator, he would play a prominent political part; and as the champion or the antagonist of a party, he would have brought the hostile passions of the nation into the conflict. But when a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally.

Interestingly enough, the system praised by Tocqueville was not the one promoted assiduously and persistently by the most prominent of the Constitution's framers, among them, James Madison, James Wilson, Gouverneur Morris. …

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