Regent University Law Review 17:1 (Fall 2004). Reprinted as "High Courts and Misdemeanors" in Touchstone 17: 8 (October 2004), and in New Jersey Family Magazine (2005). Reprinted as "Judicial Usurpation: Perennial Temptation, Contemporary Challenge," in Bradley C. S. Watson (ed.), Ourselves and Our Posterity: Essays in Constitutional Originalism (Lexington Books, 2009).
Judicial power can be used, and has been used, for both good and ill. In a basically just democratic republic, however, judicial power should never be exercised—even for desirable ends—lawlessly. Judges are not legislators. The legitimacy of their decisions, particularly those decisions that displace legislative judgments, depends entirely on the truth of the judicial claim that the court was authorized by law to settle the matter. Where this claim is false, a judicial edict is not redeemed by its good consequences. For any such edict constitutes a usurpation of the just authority of the people to govern themselves through the constitutional procedures of deliberative democracy. Decisions in which the courts usurp the authority of the people are not merely incorrect, they are themselves unconstitutional and unjust.
There were, and are, scholars and statesmen who believe that courts should not be granted the power to invalidate legislation in the name of the Constitution. In reaction to Chief Justice John Marshall’s opinion in the 1803 case of Marbury v. Madison, Thomas Jefferson warned that judicial review would lead to a form of despotism. It is worth remembering that the power of judicial review is nowhere mentioned in the Constitution. The courts themselves have claimed the power based on inferences drawn from the Constitution’s identification of itself as supreme law, and the nature of the judicial office. But even if we credit these inferences, as I am inclined to do, it must be said that early supporters of judicial review, including Chief Justice Marshall himself, did not imagine that the federal and state courts would exercise the sweeping powers they have come to exercise today. Jefferson and the critics were, it must be conceded, more prescient.