October 4, 2010
When I first mentioned that I’d bought a copy of The Federalist, I said:
I bought a copy of the Federalist Papers the other day, and now I think when I read them I need to see what was said about checks on the judiciary, because those have been proving inadequate.
I haven’t finished the introduction yet, but I think what I’ve read there has answered this. Here’s an outline:
- When the Constitution was written, the idea of judicial review was pretty vague. The people at the convention seem to have some idea that courts could consider the constitutionality of laws, but they certainly didn’t see it as one of the court’s principle functions, and determining constitutionality certainly wasn’t in any way exclusive to the courts. The Constitution itself has nothing to say about how conflicts in interpreting it should be resolved, and part of the reason judges were given life tenure was because the courts were seen as relatively weak.
- The first clear exposition of the idea of judicial review was by Hamilton in one of the later numbers of The Federalist, number 78. (According to my book, he may have been reacting to an Anti-Federalist, Robert Yates, who wrote, “They [the courts] will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications.” (page 74) Hamilton, who would have given the central government much more power than the Constitution did if he’d had his way, saw this as “not a bug but a feature.”)
- The principle of judicial review was established by Chief Justice Marshall in 1803 in Marbury vs. Madison. This is over 15 years after the Constitution was written. (I now remember learning this back in High School. That was a long time ago.)
So, the Constitution puts few checks on the courts because few people if any saw the courts as having sufficient power to cause mischief.
It’s worth noting that legislators and presidents (at least through Lincoln) didn’t always accept the Supreme Court’s position awarding itself the power to determine constitutionality. Their position was that since they had taken a oath to protect and defend the constitution, they also had a role in determining what it meant.
Related: A Supreme fetish.