Judicial Review

I read this article from the Center for Arizona Policy's legal counsel on the subject of Judicial Review. It's striking not for what it includes, which is actually pretty interesting, but for what it omits.

In the famous case of Marbury v. Madison, Chief Justice John Marshall declared that constitutional review is the exclusive role of the judiciary. Whether or not Marshall was right to assume that judges are the only officials the framers intended to have the authority of constitutional review, he was at least right that the power judges do have comes from the written Constitution.

In the Federalist Papers, Alexander Hamilton recognized that the power of judicial review ultimately comes from the people. When a statute is found to be in conflict with the Constitution, he explained, “the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

The views of Marshall and Hamilton are important because they show that judicial review exists because of the people—because of the power of citizens of the United States to frame their government by drafting, ratifying, and amending their Constitution. This is not the case in other systems of government. Part of the English legal tradition, for example, holds that judicial review is not grounded in the text of a written constitution.

The emphasis here is on the power of the citizens, which is frequently cited by conservatives in their cry against so-called "judicial activism." While this is all well and good, they're forgetting an important piece of Judicial Review, as written by James Madison in Federalist Paper #10.

Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.

The Judicial Branch is supposed to be one of the checks and balances that keep an "interested and overbearing majority" from violating the rights of the minority. That's how the judicial branch got us such things as desegregation. This isn't "legislating from the bench," as many conservatives claim; it's a balance to the legislative process, where the majority can run over the rights of the minority.

When someone can give me a clear argument as to why keeping marriage rights and responsibilities from same-sex couples is more important to the common good than to the individual rights of those couples, then I'll consider that maybe this issue shouldn't be decided by the judiciary. Although as long as I've been interested in this issue, you'd think if there were a clear argument, I'd have heard it by now. The closest anyone has come is "Public policy affects everyone." Yeah, that's a clear and compelling reason to stamp on the rights of others.

On the upside, I'm pleased to see that someone from CAP is actually using the term "judicial review" and not the nonsensical "activist judges."