Looking back at American history, it becomes clear that the US Constitution has been changed in two fundamentally different ways – through the mandated amendment process, and by being fundamentally reinterpreted through judicial review (i.e., the “living Constitution” – does anyone really believe that any of the founders would have signed on to, for example, the Wickard v. Filburn decision allowing Federal regulation of purely local agriculture?).
Most people with whom I have spoken informally on the subject are surprised to learn that judicial review is not in the Constitution, despite their having almost certainly studied Marbury v. Madison in school at some point. The follow-up question is usually, “Well, who is supposed to be deciding issues of constitutionality?” And the answer is that the Constitution is silent on that point. It’s not exactly clear what was intended by the framers – certainly judicial review was not a new concept in British jurisprudence, and some of the framers argued in the Federalist Papers in favor of it, but this really makes its absence even more puzzling. If the framers understood the concept well, and intended for it to be used, then why did they leave it out? In fact, arguably, the Tenth Amendment makes it clear that the Supreme Court does not have the power of judicial review.
Perhaps they intended that the Constitution would be so clearly drafted as to be essentially self-interpreting – but this is a naïve belief at best, and the framers were decidedly not a naïve bunch! Perhaps they intended that constitutionality would be decided in a distributed fashion, so that a President would not execute a law he deemed to be unconstitutional, state governments would not follow a statute they deemed to be unconstitutional, courts would not sustain convictions of violating laws they deemed to be unconstitutional, etc. This seems to be potentially a rather chaotic situation, however, and highly prone to (among other things) regional factionalism. On the other hand, this view is at least tenuously supported by the Tenth Amendment, which reserves powers on which the Constitution is silent for the states or the people.
The past
In defense of judicial review, it worked fairly well for a good while: it didn’t even exist for the first 15 years or so, and wasn’t used again for another 50 years after that. However, things went downhill rapidly for judicial review at that point; the second federal statute declared unconstitutional was in the execrable Dred Scott v. Sandford decision, which (further) inflamed the situation prior to the Civil War by invalidating attempts to deal with the situation in the Missouri Compromise (whatever one thinks of that specific result, it was democratically produced and could have been further modified by democratic means).
Dred Scott set up the template for many later incidents of judicial review – the Supreme Court, by taking one side in a controversy, short-circuits the democratic mechanisms of compromise, federalism and persuasion.* Note that any attempted compromise in the judicial review itself is often thwarted by the specific parameters of the case that triggered the review – however much the Supreme Court may wish to thread the needle by comments in the opinions, judicial review is, by its very nature, a blunt instrument; there is a clear winner and loser in the case, whatever the opinions say to the legal scholars reading the tea leaves.
From Dred Scott to the present, 180 more federal statutes have been struck down, in whole or in part. It is not my intent to argue that all (or even most) of these were wrongly decided. In fact, the most damaging (to my mind) instances of judicial review have been those in which the law was left intact (Plessy v. Ferguson, Wickard v. Filburn, Kelo v. New London) with concomitant expansion of the power of the Federal government, and those in which state laws were struck down (Roe v. Wade, Obergefell v. Hodges) thus aggregating more power to the central government. Even if all the cases with which I disagree had been decided the other way, I would still be opposed to judicial review moving each of these difficult issues into the category of “writ in stone” – out of the bounds of democratic compromise and eventually even polite discourse. Simply by having an unelected body decide one of these difficult questions more-or-less permanently, the process guarantees that the issue can never (or at least not for a very, very long time) become noncontroversial. We should all be thankful, for example, that there was never a judicial review case taken up on bimetallism vs. the gold standard. One can only imagine the Facebook conversations on that one!
The future
So, what to do in USA version 2 with the question of who decides constitutionality? The question of review authority must be addressed explicitly, otherwise some governmental entity or other will simply appropriate the power, as happened in 1803 with the Supreme Court. Constitutional review shouldn’t follow the current model, as that clearly provides a single point of failure by which the Constitution can be effectively amended undemocratically – even if the Supreme Court did voluntarily decide to respect the text and original public meaning of the Constitution, it is completely dominated by Ivy League-educated lawyers, which is hardly a representative group. Constitutional review probably shouldn’t be done by any Federal court at all, since they are (at least under the current Constitution) limited by the “case or controversy” clause that bars advisory opinions – it should be possible to ascertain the constitutionality of a statute without the necessity of finding a suitable party with appropriate standing to file suit at a time when the issue is neither unripe nor moot.
Here are a couple of suggestions:
- judicial review by the Supreme Court, but with the “case or controversy” requirement removed from constitutional inquiries, and with constitutional restrictions placed on these decisions, requiring some level of judicial and hermeneutical restraint – for example, the burden of proof in such a “case” should be principally on the Federal government, secondarily on any involved state government, and lastly on any involved individual; following the Constitution, the Federal government must be required to show a clear enumeration of its power to enact any questioned statute, and purely intrastate questions should be severely limited. The major downside to this approach is that the Supreme Court actually has other rather important jobs to do as well, and this would likely bog them down considerably.
- a separate, fourth branch of government that has only the job to rule on constitutionality and is empowered to issue advisory opinions. There are all sorts of ways to organize this, but some arrangement that gets non-lawyers involved would be desirable (lawyers should be employed principally as staff, serving the group as a whole). It should be seen as a rather onerous duty to serve on this body, rather than a great honor – for this reason, it probably should be a long term of service, but not a lifetime appointment. The major downside of this, of course, is that we really don’t know how this idea would work in practice. It would be ideal if several states would adopt varying versions of this idea at the state level for some years, so as to see what the issues are. I’m not keen to fall prey to the standard progressive government syllogism, “Something must be done; this is something, therefore it must be done.”
To reiterate, to make USA version 2 more robust and less susceptible to undemocratic takeover, our current ad hoc purely tradition-based Supreme Court judicial review must be replaced by some other mechanism that ideally
- Respects the actual text and ordinary public meaning of the Constitution
- Only deals with actual Constitutional interpretive questions, rather than deciding hot-button cultural questions, which should be left to the states
- Is representative, and not easily co-opted by the elite
- Is capably of being queried on constitutionality without a “case or controversy”
- Has been tested at the state level before use at the federal level
Note that all the restrictions on this mechanism would need to be clearly mandated in the Constitution itself, otherwise the body possessing review power will simply “interpret away” any restrictions, and accumulate more power for itself.
* The recent Supreme Court decision, Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade and Casey v. Planned Parenthood, takes explicit note of this (see, for example, majority opinion, III.B – slip op. pp. 44-45). While I find this extremely heartening, absent a structural change, a future SCOTUS can readily resume the “amendment by fiat” regime that brought us Roe and Obergefell (and others).