Government by Lawyers & Judges

Commentary, June 1987.


We call it judicial review, and while the point has frequently been disputed, sometimes fiercely, there is really no question but that the Framers intended federal judges to exercise the power to invalidate laws that they consider unconstitutional.

To be sure, under the provisions of Article III, the judges are not directly authorized to declare laws unconstitutional. The only power given them is to decide certain designated “cases” and “controversies.” The power to declare laws unconstitutional derives from the necessity to decide a case or controversy in which one party is relying on the law and the other party is relying on the Constitution, and where the law and the constitutional provision are in conflict. This was said by Chief Justice John Marshall in 1803 in the celebrated case of Marbury v. Madison and has been settled doctrine ever since.

It could hardly be otherwise. It would certainly violate the most fundamental of republican principles were federal judges given political power, in the sense of deciding on the wisdom or desirability of proposed legislation. Federal judges serve for life. Because they never have to submit themselves to public scrutiny, they have no right to decide public or political questions. And they were given this independence from the voters precisely because they were expected to make decisions respecting private rights. The judges were expected to stay out of the one area, and the public was expected to stay out of the other.

American Enterprise Institute