Many Americans currently lack a basic fundamental understanding of the Supreme Courts origins and workings. The Court is a virtually unacknowledged entity. Unlike the executive or legislative branches, most Americans are only exposed to the Court during a greatly publicized issue—such as affirmative action or doctor assisted suicide. The Supreme Court is entrusted with the Constitutions preservation through the process of judicial review. This authority means many of the Courts decisions have a great effect on the American people.
In order to understand the Courts role in todays government, one must understand its history. The Courts origins are deeply rooted in the philosophic thoughts of the Framers and, more particularly, in the writings of the philosopher, John Locke. The foundations and purposes of a liberal republic as articulated in the Declaration of Independence and in Lockean theory give rise to constitutional governments. Such institutions are created so that men may escape the dangers of the state of Nature and protect their lives. The Constitution delegates power to the Supreme Court in order for them to preserve the Constitution. In the words of Charles Evans Hughes, "We are under a Constitution, but the Constitution is what the Court says it is."
At the time of the American revolution, the theories of philosopher John Locke were used as the rational basis in the Declaration of Independence for rebelling against the oppression that threatened the colonists property. The Declaration stipulates that all men are created equal and endowed by their Creator with the unalienable rights of life, liberty and the pursuit of happiness. By virtue of their humanity, these rights are included in the property of every man. In order to preserve these rights, however, governments are instituted among men, deriving their powers from the consent of the governed. When a government becomes destructive of these ends, "it is the right of the people to alter or abolish it." It then becomes necessary to institute a new government, "laying its foundation on such principles, and organizing its powers in such form," that will most likely provide for the peoples safety and happiness.
In his Second Treatise on Government, John Locke articulated that all men naturally exist in a "State of perfect Freedom to order their Actions and dispose of their Possessions and Persons as they think fit." In this state, all men are equal because they are born of the same species and have use of the same faculties. Locke further asserts that while man may possess complete freedom over his property, he does not have the right to commit suicide, unless he has no possible hope of pursing his happiness. The Law of Nature, or reason, governing mans natural state obliges every creature to preserve himself and to not quit his station willfully. Nature gives men the desire to preserve themselves. This implies that they are entitled to preserve themselves, because nature is not a cruel tyrant who gives men a desire without allowing a means for its satisfaction. While they are alive, men who wish to pursue their happiness require liberty for the chase. Therefore,
a man needs his full property in order to gain the freedom required for the pursuit.
While the state of nature is one of liberty, it becomes also a State of War full of "Eminity and Destruction; And therefore by declaring by Word or Action…a sedate settled Design upon another Mans life, puts himself in a State of War with against whom he has declared such an Intention…." In other words, one who seeks to enslave another man, and take his property, thereby puts himself into a state of war with him.
Men cannot preserve their property in this state because there is little protection from the offenses of others. Locke states that though in the State of Nature man has perfect freedom, his "Enjoyment of it is very uncertain and constantly exposed to the Invasion of others." When a man is deprived of his property, he holds no control over his existence. This is because others can control his existence. Without liberty, a man has no freedom from others; and without that essential freedom, he cannot preserve himself.
In order to escape the dangers of the State of Nature and to better protect themselves and their property, men put on the bonds of Civil Society and unite into communities. Locke states that when men enter into a social contract, their consent "thereby made that Community one Body, with a power to act as one Body, which is only by the will and determination of the majority." In this society, every person agrees to obey a government founded on the principle of majority rule. Such a system will allow the society to conduct its business without submitting to the conflicting interests or opinions of a few. When the citizens fail to honor majority rule, however, the original compact is nullified; thus, the citizens lose their protection and return to the dangers of the State of Nature. The Constitution was created to serve as an extension of the Declarations Lockean based principles by creating a government that would fully preserve and protect its people. Locke advocat
ed the use of a written constitution as a reminder of the social compacts foundation. This document would then separate the powers within the government, provide for elected representatives, and allow the people to retain the right of rebellion against government oppression. Thus, it is from these four principles, that the first part of Hughes remark, "We are under a Constitution…" is fully understood. The Founders adopted a Republican form of government using these Lockean principles in order to protect the peoples fundamental rights. Moreover, the American people through their consent, live under a constitutional government that preserves their property.
Although the people live under a Constitution, the Courts through their judicial powers have the authority to interpret its meaning. The people will always remain sovereign, since the Constitution embodies the will of the people, and can be amended, altered or abolished by them. Through the peoples consent, the Constitution serves as the governments principle foundation, of which it is the Courts duty to preserve. Alexander Hamilton, in Federalist 78, stated that "the interpretation of the laws is the proper province of the courts. A constitution is in fact, and must be regarded as, fundamental law." The Courts enumerated judicial powers are defined in Article III, Section 2 of the Constitution. This authority, however, is also defined through court precedents. For example, with the Supreme Courts decision in Marbury v. Madison—where the Court decided it held no original jurisdiction concerning writs of Mandamus—the precedent of judicial review was esta
blished. Judicial review was deemed necessary by the Court because the Constitution must always be upheld as fundamental law. In his decision, Justice Marshall wrote that "the Constitution is either a superior paramount law…or it is on a level with ordinary legislative acts…alterable when the legislature shall please to alter it." It is the Courts responsibility to interpret the laws to fulfill their purposes. If Congress was legally able to create legislation that violated the Constitution, then it would lose its fundamental value, becoming little more than a law alterable by legislative will. Judicial review was established so that the Court could nullify any Congressional laws that conflict with the Constitutions fundamental principles.
Although the Courts powers can influence the scope of the Constitution, there are many limits placed upon its authority. For example, the Court is limited externally by the possible impeachment of its judges and by the restrictions placed upon its appellate and original jurisdiction. The Courts original jurisdiction is limited—under Article III, Section 2, clause ii—to "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be party…" Moreover, the Court is restricted from reviewing any case prior to its appearance on the appellate docket. The Courts appellate jurisdiction can be restricted by the congressional discretion established in Article III, Section 2. Despite these restrictions, all cases that appear before the Court must be issues that can appropriately be decided by a court. People must have standing to sue the government, and Article III confines the federal courts to adjudicating actual "cases"
; and "controversies." In order for a case to be triable, a person must experience harm fairly traceable to a governmental violation of the law. Only if this link is proven can standing be granted.
There are also several internal limits placed upon the Court. Judicial review only permits the Court to nullify those laws that directly violate the Constitution. As established in cases like Luther v. Borden—where the Court ruled that only Congress can decide legitimate forms of government—the Court is prohibited from hearing political questions cases because they concern governmental forms, and not questions of law. Any such decision might interfere with Constitutional separation of powers. It is the province of the courts to determine Constitutional violations and not to control the essential functions of the other branches. If such cases were decided by the Court, their rulings might alter or violate the Constitution.
Locke articulated that all men are endowed by their creator with the unalienable rights of life, liberty and property. These rights are granted to every man by nature of his humanity and are included in his property. But the dangers man faces in the state of nature do not easily allow for the preservation of his property and existence. Thus, in order to better protect their natural rights and escape the dangers of the state of nature, men enter into communities. In such arrangements, governments are created based upon certain fundamental principles, deriving their powers from the consent of the governed. The founding fathers used this logic when writing the Declaration of Independence. The Framers then created a Constitution that would serve as a protective extension of the Declarations established principles. Although the Constitution serves as the peoples fundamental law, the Courts possess the power to interpret the Constitution through their powers of judicial review.
Erica Cook is a junior from North Canton, Ohio, majoring in Journalism and Political Science. This summer, she will be attending the Fund for American Studies at Georgetown University in Washington, D.C. for six weeks.
Locke, John. "An Essay Concerning the True Original, Extent and End of Civil Government." Two Treatises of Government.