Reigning Supreme
(Feb. 4, 2010) Editor:
Regarding concern for the Supreme Court’s decision allowing corporate political contributions, the more fundamental issue has to do with the Court’s power to review acts of Congress in the first place (see “Town Dandy,” Jan. 28). This is a power which is not set forth in the U.S. Constitution and only came into being as a result of the actions of the first chief justice, John Marshall, in the case of Marbury v. Madison in 1803. (This case itself arose from the early political conflict between the right-leaning Federalists, represented by Marshall, and the populist oriented Democratic-Republicans, represented by then-President Thomas Jefferson.)
The assumption historically has been that Supreme Court justices, being appointed for life, are immune from the pressures of politics and thereby render decisions based purely on the integrity of legal precedent. Anyone who believes this proposition need only look at history for examples where political orientation of the justices has clearly determined the Court’s decisions (viz, the pre-Civil War Dred Scott decision, Bush v. Gore in 2000, and now Citizens United v. Federal Election Commission). Over the course of history, depending on orientation of the majority on the Court, we have seen decisions supporting the political left as well as the right.
The appropriate action to deal with this ongoing problem, now demonstrated yet again in Citizens United, would be by constitutional amendment to remove the power of the Supreme Court to pass on the constitutionality of acts of Congress. The real objection to the power of judicial review is that by its exercise unelected judges are allowed to stand in a position superior to and to pass judgment on actions of popularly elected officials of our government — the Congress and President. It is a power without which Great Britain has successfully maintained its democracy for much longer than we have in the U.S., and which is expressly forbidden to the courts in the constitution of the Netherlands.
Robert Breslin, Trinidad
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Old Town Arcata
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ONE Comments
Comment / By rc / Feb. 7, 1:14 p.m.
Although it is commonly taught that the first Justice Marshall was responsible for bringing into being judicial review, in the words of Justice Ginsberg (C-Span interview), judicial review is implicit in the Constitution, but Justice Marshall made it explicit.
The Constitution embodies the presumption that the tendency of government is to abuse its power and provides for protections against bad government and bad law in the form of checks and balances, such as the power of each house of congress to expel unfit members, the impeachment power to remove bad executives or bad judges, two houses of the legislature, the executive veto power, congressional override power, and the third branch of government, the courts of justice. In the words of one of the Framers —“the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws.” (Hamilton, FP #78).
There is no express or implied constitutional requirement for the court to render decisions “based purely on the integrity of legal precedent.” The justices like all federal officers are required, by oath or affirmation, to support the Constitution (Article VI). Precedent is appropriate only where it serves the interest of justice and other constitutional purposes (see Preamble).
Having a constitutional amendment that would remove the court as a check against legislative encroachment would be to deny citizens a very important protection against abuse by government in the form of bad legislation, which was anticipated by the Framers. (See discussion of improper laws in Federalist Papers #16, #22, #73, #78, #83 among other places.)
Representatives of other states are not accountable to me, yet by majority rule, they have the power to unjustly infringe upon my liberty. Court review is there to provide me the opportunity to have unjust legislation voided.
Further, democracy is only as good as the quality of elections (equal opportunity for all candidates) and the competence of the voters (adequately informed and having capacity to decide), otherwise majority rule reduces down to mob rule. Just because a person has the power of the vote doesn’t mean that person decides wisely.
I do believe the Supreme Court has failed the people on more than one occasion, and I am not a fan of lifetime tenure, but blindly trusting in the legislature with an essentially unlimited license in the form of a constitutional amendment is scary. It is also abdication. Power is probably one of the most intoxicating substances known to humankind. Citizens should never cede power to government unless absolutely necessary.