“Today’s liberal critics of judicial review make two principal claims, both of which Learned Hand made too. First, they say that judicial review is repugnant to democracy. To allow unelected judges to void the actions of democratically elected legislators, presidents, or governors, the argument goes, is to allow the judiciary to subvert the will of the majority. Second, these critics say, judicial review “wasn’t enumerated in the Constitution and isn’t inherent in the court as an institution,” as Bouie put it. Thus, the act of abolishing judicial review does not raise any constitutional concerns.
These liberal critics are right on the first count and wrong on the second. The judiciary is undoubtedly the least democratic branch of government. But that is by design. The role of the federal courts, as James Madison once put it, is to stand as “an impenetrable bulwark against every assumption of power in the legislative or executive.” Lawmakers and presidents sometimes assume powers that they should not, and popular majorities sometimes support those power grabs. The judiciary is meant to stand in the way even if judicial review thwarts the will of such majorities. Indeed, the judiciary is meant to act as a check against the tyranny of such majorities.
What is more, contra Bouie, this authority is firmly located in the Constitution and fully inherent in the judicial branch. According to Article III, Section 1, “the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Framers and ratifiers of the Constitution understood the phrase “the judicial power” to include the power of federal judges to nullify legislative and executive acts that violate the Constitution, which is the power that we call judicial review.”
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“An examination of American legal history reveals the solid constitutional foundations of judicial review. Take the 1787 Constitutional Convention in Philadelphia, where the document was drafted. Speaking on July 21, Luther Martin gave voice to the consensus view. “As to the constitutionality of laws,” Martin observed to his fellow delegates, “that point will come before the judges in their proper official character. In this character they will have a negative on the laws.” George Mason made the same point on the same day. Under the Constitution, he said, judges “could declare an unconstitutional law void.” Nobody at the convention disagreed with any of that.
This same understanding of “the judicial power” is also evident in the Framers’ debates about a proposal that did not make it into the final document. James Madison was foremost among those at the convention who thought that Congress should have the constitutional power to veto state laws. Madison had watched as various states, under the Articles of Confederation, erected tariffs and other costly impediments to interstate commerce (among other barriers to the economic and political harmony of the new nation). Madison wanted to see a congressional check put in place against such state actions.
The states “can pass laws which will accomplish their injurious objects before they can be…set aside by the national tribunals,” Madison told the convention on July 17. In other words, Madison worried that judicial review by the federal courts might take too long in such cases and therefore wanted Congress to be able to move even more quickly against especially dangerous state laws.
Gouverneur Morris spoke for the opposition to that proposal. “A law that ought to be negatived,” Morris replied, “will be set aside in the judiciary department.” Morris did not favor a congressional veto over state legislation because he thought the veto power of the federal courts—judicial review—would do the trick.
Morris beat Madison in that particular debate. The Constitution would not contain a congressional “negative” over state laws. But both sides in the debate did think—indeed, both sides simply took it for granted—that the federal courts would have the constitutional power to “set aside” unconstitutional laws. They all agreed that the federal courts would have the power of judicial review.”
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“That same understanding of “the judicial power” is evident when you examine the records of the state ratifying conventions.”