Judicial Review?

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I hate to disagree with Judge Jerry Smith, but judicial review is a usurped power not present in the constitution. The anti-federalists had anticipated it, however, seeing it as just another of the viciously increased federal powers to be enabled by the new constitution as versus the far more libertarian Articles, which had been overthrown in the federalist coup at Philadelphia. Jerry is right to see bad motives in Obama’s comments, however; he’s building the executive dictatorship.

UPDATE A dissent from Kevin Gutzman:

The alternative to judicial review is for judges to enforce laws they adjudge unconstitutional.  You can’t really be advocating that.

Judicial review is not a usurped power.  Rather, Federalists sold the Constitution partly by saying that it would feature judicial review.  Yes, Antifederalists in New York criticized the idea, but Patrick Henry in Virginia said he wished there were going to be judicial review, but he doubted federal judges would dare to stand up to Congress.

We could note, however, that there was virtually no mention in the Virginia materials of the idea of federal judicial review of state enactments, a power that the federal courts claimed early in the 19th century and have come to exercise more and more promiscuously — without any real check on their doing so — in our day.  Their facetious “constitutional” holdings against state governments have indeed been usurpations, but that is less due to judicial review than to out-and-out lawlessness.

UPDATE A dissent from Len Budney:

I am not a constitutional scholar, but I would think that a caveat is in order when saying that judicial review is unconstitutional. I’d certainly agree that the failure of the supreme court to strike down a law should never be interpreted as evidence of its constitutionality; that’s exactly how we got the system of “slow motion collusion” we have today in which the legislature usurps unconstitutional powers, and the supreme court then blesses the usurpation and makes it holy.

The converse, however, I don’t think is true: when the court does strike down a law as unconstitutional, they are doing their job properly. An unconstitutional law is void on its face, and the supreme court, upholding the as the supreme law of the land, therefore has no choice but to nullify unconstitutional laws by refusing to uphold them.

Another point on which I’d disagree with the concept of judicial review is this idea that it is uniquely the supreme court’s business to be deciding which laws are constitutional. Nullification is everyone’s job, down to the lowliest juror. The supreme court exists in part as a final backstop, to nullify laws that have not already been nullified by a President’s failure to veto them, states’ failure to disobey them, cops’ failure to neglect enforcement, prosecutors’ failure to refrain from filing charges, jurors’ failure to acquit, and several layers of judges’ failure to dismiss. It is all of their failures that gives the SCOTUS such devastating power as the sole arbiter of constitutionality.

As for your remarks about the Articles of Confederation, spot on as usual.

UPDATE from Scott Evans:

Count me among those who side with you against those who dissent from your opinion. In reading Article III, Sections 2 and 3, in which the
scope and powers of the federal judiciary are enumerated, NEVER ONCE is authority of the judiciary to review acts of the legislature even
hinted at, let alone clearly stated. Since the Constitution was ostensibly written to specifically enumerate the powers of the federal
government, and does so in Articles I and II, there is no reason for anyone to believe that the judiciary was intended to be an exception.

While your critics mention that certain among the founders supposedly expressed the desire to see judicial review included as an enumerated
power, and while such a power MIGHT under certain IDEAL conditions be desirable, the issue at hand is what the Constitution specifically
permits. This being the case, the fact that judicial review is clearly not among those enumerated in Article III, Sections 2 and 3 makes it an
illegitimate act by the SCOTUS. Short of an amendment to the Constitution, nothing legitimizes the act, therefore making it a power
continuously usurped for the last 209 years.

1:58 pm on April 5, 2012
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