VIII
JUDICIAL REVIEW: II CONTROVERSY AND LIMITATIONS

JUDICIAL REVIEW IN A DEMOCRATIC STATE: SAINT OR SINNER?

That no other federal law, or section thereof, was declared unconstitional by the Supreme Court between Marbury v. Madison1 in 1803 and the Dred Scott case,2 which was decided fully fiftyfour years later, did not lessen the debate on the doctrine of judicial review. That it has remained fresh, indeed, and has lost none of its controversial characteristics, is testified to by the widespread public, often emotion-charged, debate surrounding the unanimous decision for the Court by Mr. Chief Justice Warren in the 1954 Segregation Cases3 -- in a sense the grandchildren of the Taney Court's decision in Dred Scott. The charge against the Warren Court: in holding compulsory segregation on account of race in the public schools to be a violation of the "equal protection of the laws" clause of the Fourteenth Amendment to the United States Constitution, the Court had not judged, not interpreted, not reviewed, but legislated. The indictment of judicial legislation is directly related, of course, to the power and doctrine of judicial review -- once characterized as "the people's institutionalized means of self-control."4

____________________
1
Cranch 137.
2
Dred Scott v. Sandford, 19 Howard 393 ( 1857).
3
Brown v. Board of Education, 347 U. S. 483 ( 1954) and Bolling v. Sharpe, 347 U. S. 497 (1954).
4
Charles L. Black, Jr., The People and the Court: Judicial Review in a Democracy ( New York: The Macmillan Co., 1960), p. 20. For some other vital recent works on judicial review, with varying points of view, cf. Alexander M. Bickel , The Least Dangerous Branch ( Indianapolis: The Bobbs-Merrill Co., Inc., 1962), Herbert Wechsler, Principles, Politics and Fundamental Law ( Cambridge: Harvard University Press, 1961); and Charles S. Hyneman, The Supreme Court on Trial ( New York: Atherton Press, 1963).

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