Judicialism’s Cost to the Republic

Andrew E. Busch

September 1, 2003

In the last week of June, the U.S. Supreme Court rendered a variety of rulings that conservative constitutionalists found troubling, if not distressing. Chief among these were the incoherent pair of Michigan cases, which found race-based admissions policies either constitutional or not constitutional depending on how disingenuous they are, and a case from Texas which proclaimed a newly-discovered right to sodomy lurking in the assorted penumbras of the Constitution.

While conservatives were right to train their fire on the reasoning of the cases, a focus on the content of the decisions obstructs our view from another central question: What is the proper role of the federal judiciary in the American polity?

One answer to that question can be found in the doctrine of “judicialism,” which holds that the Supreme Court is the primary, and perhaps sole, interpreter of the Constitution, and that all other state and federal institutions should simply submit to its judgment. Cases are “handed down,” as if from Mt. Sinai,
and it is neither the duty nor the right of the elected branches to inquire too deeply into constitutional questions. In its baldest form, the admirers of the Court simply declare that “the Constitution is whatever the Supreme Court says it is.” This answer has become increasingly popular in the media, the law
schools, and, needless to say, the Court itself over the past 50 years.

To be sure, the Framers of the Constitution made a point of instituting an independent national judiciary — something which had not existed under the Articles of Confederation — as a check on the elected branches. And it seems clear enough that they expected it to engage in what we now call judicial review. In the Federalist papers, Alexander Hamilton called an independent judiciary an “excellent barrier to the encroachments and oppressions of the representative body…Limitations [on legislative authority] can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”

Granting the Supreme Court this power, however, is not the same thing as granting it sole and unchallenged authority in the realm of constitutional understanding. Indeed, it must be considered contrary to the spirit of republicanism to place a claim of infallibility in any political institution devised and operated by human beings. The history of the Court itself is replete with demonstrations of its constitutional fallibility; Plessy v. Ferguson and Brown v. Board cannot both be correct, nor could the court be error-free both before and after the 1937 “switch in time that saved nine.” Yet in the doctrine of
judicialism no one is assigned the task of checking the Court when it goes astray, a proposition incompatible with the genius of the American system, which seeks to avoid the unchecked concentration of power in any hands.

Just as judicialism gives the political system no means to deal with courts that are consistently and aggressively in error, it gives members of the elected branches no resources with which to fill the breach if the federal courts are insufficiently active and simply refuse to exercise their power to enforce the Constitution. May Congress or the President simply disregard the constitutional implications of their actions just because the courts have lost interest in defending a particular aspect of the Constitution?

While judicialism would say yes, members of Congress, the President, and state elected officials like governors and legislators swear an oath of faithfulness to the Constitution, strongly implying that they have a positive duty that goes well beyond merely providing obeisance to the Supreme Court. The President’s oath is actually included in the text of the Constitution itself, and pledges the chief executive to “preserve, protect, and defend the Constitution of the United States.” The congressional oath requires members to “support and defend the Constitution of the United States against all enemies, foreign and domestic” and to “bear true faith and allegiance to the same.” Should anyone be tempted to think the oath of office merely symbolic and incapable of inferring duties or powers, Abraham Lincoln offered his presidential oath of office as a justification for emergency measures taken at the onset of the Civil War.

As always, insight into the thinking of the framers can be gained by examining the Federalist. While Hamilton explicitly laid out the principle of judicial review, he did not get around to doing so until the 78th Federalist paper (out of 85). In a few earlier papers, Publius referred to the judicial power in
passing. Yet other papers were filled with discussion of constitutional interpretation, positing Congress, the executive, the states, and the people themselves as the primary players in defending the Constitution:

  • In Federalist 17, Hamilton argued that the states “will be able effectually to oppose all encroachments of the federal government.”
  • In Federalist 33, Hamilton again: “[T]he national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”
  • In Federalist 46, Madison suggested that “Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government: still it would not be going too far to say that the State governments with the people on their side would be able to repel the danger…Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit.”
  • In Federalist 49, Madison referred to Jefferson’s argument that “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between them.” He was unwilling to follow Jefferson’s advice to frequently refer constitutional issues to the people themselves, but he did say that “a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions.” Notably, Madison did not deny Jefferson’s assessment of the coordinate nature of the branches.
  • One of the most famous of the Federalist papers, Madison’s number 51, held that the greatest security against constitutional usurpation and concentration of power “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist the encroachments of the others.”
  • “I am unable to conceive,” Madison reported in Federalist 55, “that the State legislatures, which must feel so many motives to watch and which possess so many means of counteracting the federal legislature, would fail either to detect or to defeat a conspiracy against the liberties of their common constituents.”
  • In Federalist 79, Hamilton pointed out that “the precautions for [judicial] responsibility are comprised in the article respecting impeachments,” meaning that judicial “malconduct” — presumably including constitutional usurpation, as in the case of the president — is subject to check by Congress. In number 81, Hamilton elaborated on the “important constitutional check” on the judiciary of the congressional power of impeachment and removal, which gives to Congress “the means of punishing their presumption by degrading them from their stations.” In Hamilton’s view, this power was so formidable as to make a “phantom” of the “supposed danger of judiciary encroachments on the legislative authority.”
  • The final paper in the series, number 85, addressed the amendment process. Hamilton averred that “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”

Altogether, in instance after instance, Publius placed a significant measure of responsibility for the maintenance of the Constitution in the hands of the elected branches of the federal government, in the state governments, and ultimately in the people. The supposition that the Supreme Court possesses that field of action solely — or even predominantly — is not consistent with this body of work.

Even Hamilton’s discourse on judicial review in Federalist 78 contained numerous implicit caveats. First, judicial power was only legitimate when it was not fused with executive or legislative power. While his primary concern was that a feeble judiciary would be subsumed in practice under another branch, the reverse would be equally troubling. Further, Hamilton argued, judicial power lost legitimacy whenever it began to reflect “WILL, not JUDGEMENT.” The ability of courts to strike down statutes which violate the Constitution does not “suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people [and their Constitution] is superior to both.” In the end, the judicial branch was the weakest of the three, Hamilton argued, because it lacked the power of the purse possessed by Congress and the power of the sword held by executive. In other words, it cannot enforce its own decisions. Such a situation only constitutes weakness, however, if Congress and the executive are willing to refrain from enforcing court decisions. The relative weakness of courts alleged by Hamilton is only an accurate appraisal if the other branches maintain their own capacity to interpret the Constitution and maintain the option of defending their own interpretations over those of the court.

Indeed, Hamilton’s discussion, far from representing a bold assertion of judicialism, should be read in the context of antifederalist arguments against the federal judicial power. The antifederalist “Brutus,” for example, complained that the federal courts

will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications. From this court there is no appeal…there is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.

Hamilton’s rejoinder was hence both an explanation of the necessity of an independent judiciary in a constitutional republic and an attempt to assure readers that such a judiciary was not dangerous because it was hemmed in by other institutions and by the norms of restrained conduct that would guide it. Thus it might be said that the antifederalists anticipated judicialism but deplored it, while the federalists denied that their system would produce it. Neither side embraced it.

Furthermore, the structure of American government gives the elected branches both the opportunity and the obligation to assert their constitutional views. Congress, for example, can initiate constitutional amendments; passes legislation that affects both individual rights and the scope of federal authority under the enumerated powers; and is responsible for the impeachment and removal of judicial officers. The Senate’s confirmation is required for both judicial appointments and executive branch appointments whose jurisdiction may include constitutional issues. The President, for his part, makes those appointments,
interprets his own powers on a daily basis, enforces the law as he sees it, and can wield his veto power for constitutional reasons. If the Supreme Court has abused its authority, either by asserting authority beyond right or by neglect, it is because Congress and the President have lacked the will — not the means — to oppose it.

The cost of this default is high, not least in the capacity and ardor of the American people for self-government. The Constitution of 1787 was truly a living document — a vibrant constitution of free people who governed themselves and settled difficult questions through deliberation and the sort of messy ongoing dialogue that judicialism eschews. The Constitution was the Supreme Law of the Land, the proper standard of measurement and object of obedience — not the musings of the Court. To abandon this understanding is to flee from constitutional republicanism itself, and to trade the living Constitution of 1787 for a dead constitution of arbitrary, capricious, highly concentrated, and unchecked power, draped in robes of black.

Andrew E. Busch is an Associate Professor of Political Science at the University of Denver and an Adjunct Fellow of the Ashbrook Center.