Lew, the notion of judicial review relies on an understanding of what is judicious in the first place. There are two views of this jurisprudential preamble to positive (not positivist!) law. One assumes that the Constitution is the fundamental law of the land and must be followed. That assumption rests on metaphysics (and the classical understanding of jus before Francis Bacon: that justice and law must reflect what is right by nature (hence, the natural law). This view also confirms the all-important concept of limits — limited government, the separation of powers, and the limits on those powers themselves and those who exercise them. The Founders’ generation fully understood the metaphysical nature of law and that understanding informed the adoption of the Constitution.
The second approach views the Constitution as a “living document” — one which can be interpreted anew by the constantly progressing human intellect and those enlightened few who possess it. I recall Thurgood Marshall’s hatred of the Founding Fathers… but his willingness, nonetheless, to interpret the Constitution — not in the light of the law, of course, but in the superior view of Thurgood Marshall.
Of course, Marshall was not alone: Chief Justice Earl Warren confirmed the Marshall approach when he once explained the question that always informed his judgment regarding the decision, whether or not a law was constitutional: “Is it fair?”
Thus today, in the hands of the elite, the constitutional label of “Judicial Review” is actually a whim slapped onto the law of the land, representing little more than a capricious and increasingly shallow egoism. The Congress — equally shallow and capricious — is willing to swallow it because the Congress has for years been pleased to blame the Court, and not itself, for the degradation of the law by the court for the past 90 years or so. The alternative? Why, impeachment, of course. It is the Congress’s role to decide what is “fair” — subject, always, to the metaphysical limits placed on congressional powers by the Constitution.
What is at work here is the collision between the humility of the civilized judge before the law — humilitas — versus the inordinate pride of the robed barbarian — superbia vitae.
A parallel attack by the Court on the Constitution is described in Cancer In The Constitution, a booklet published forty years ago describing how earlier courts destroyed the constitutional limits on the federal government’s power. “For the 32 years of service together on the Supreme Court, Justices Black and Douglas have been repetitiously citing each other as authority for a gross and gratuitous misconstruction of the First and 14th Amendments,” Clarence Manion, former Dean of Notre Dame Law School, wrote.
“The accumulation of these malignant constitutional misconstructions of the first eight amendments with the 14th has placed a cancer near the heart of our constitutional system which is proliferated with each successive term of the United States Supreme Court.”
The article linked above that cites my father’s work (which is itself out of print) also contains a fascinating observation as true today as it was forty years ago:
“Dr. Cornellius Cotter, Professor of Political Science at the University of Wisconsin, appeared before a special Senate committee in April, 1973. He remarked: “You know, Senator Mathias, it has been said—and, I think wisely so—that if the United States ever developed into a totalitarian state we would not know it. We would not know that it had happened. It would be all so gradual, the ritualism would all be retained as a facade to disguise what had happened. Most people in the United States, in official position, would continue to do the sorts of things that they are doing now. The changes would have all been so subtle although so fundamental that people generally would be unaware.”7:33 am on April 6, 2012 Email Christopher Manion