Judicial review and the balance of governmental power

Judicial Review

The most important American political institution is the U.S. Constitution. Of course, this is only a document, but it is also an institution in its own way, for it is the basis of all American political institutions and practices. It is like the DNA of our government: We would have no government without it, no road map to create our form of democracy. Unlike other democracies like Great Britain in which there is no single guiding document or voice, the U.S. government has a central core. This is, of course, sometimes problematic as when courts or other governmental institutions become so wrapped up in the problem of the "original intent" of the Framers of the Constitution - as if anyone could determine after over two centuries what such intent might be, assuming that the Framers themselves would want us necessarily to limit ourselves to their vision of the world. But it does provide an essential coherence to our American political world that is lacking in other countries.

Within the Constitution, the most important elements are the Bill of Rights, especially the First Amendment with its definition of our essential human and civil rights and the Tenth Amendment, with its reminder that not all the rights that an American has have to be defined by government to exist. However, equally as important an element of the Constitution is the way in which the separation of powers is specified so that the three branches of government - the judiciary, the executive branch and the legislative branch (as well as the federal, state and local levels of government) - must work in tandem with each other.

It is safe to say that a respect for the principle of separation of powers is deeply ingrained in every American. The nation subscribes to the original premise of the framers of the Constitution that the way to safeguard against tyranny is to separate the powers of government among three branches so that each branch checks the other two.

Definition of Judicial Review

The concept of judicial review, at least within American jurisprudence, is based in this broader concept of separation or balance of governmental powers. Judicial review is the balance of power that the judiciary has over the legislative branch (which may enact laws that the judiciary finds violate either existing case law or some element of the Constitution itself) as well as the executive branch, which may try to put into action either laws or executive orders that similarly violate either existing case law or some element of the Constitution itself. Without the power of judicial review, there is effectively no balance of power among the three branches of government. The following citation summarizes the centrality of this concept to the overall structure of governance in the United States.

Judicial review is a court's power to review, and possibly nullify, laws and governmental acts that violate the constitution and higher norms. It is a way to assure that governmental actors respect the constitution and do not use powers granted to them by the constitution to seize illegitimate power. Judicial review is generally the final word by a governmental institution on a law's validity.

While this basic concept of judicial review may seem to be relatively simple and straightforward, in practice it has often proved to be complex and ambiguous - which does not lessen its importance. The U.S. Supreme Court (which is the court that has the ultimate power of judicial review in the nation, although lower courts also exercise this right within their own jurisdictions) derives much of its importance as an institution from its ability to deny the validity of both legislation and executive actions if the court considers either legislation or executive action to conflict with any element of the Constitution. This ability to nullify the actions of both he legislative branch and the executive branch (or the actions of both, should legislation and executive action work together) is the power of judicial review.

Judicial review allows the courts, and specifically the Supreme Court, the ability to safeguard the rights of individual Americans. At the same time, it empowers the judiciary to create a "living Constitution" that can be - and is - adapted to changing historical, political, economic and cultural conditions and that allows a single, aging document to provide the basis for wise and just governance in a brave new world the specifics of which the Framers could scarcely have imagined.

Judicial Review and the Federalist Papers

The Federalist Papers were a series of 85 essays on then-proposed Constitution as well as more generally on the nature of republican government. Published in 1787 and 1788 by Alexander Hamilton along with James Madison and John Jay, the intent of these papers was to persuade the voters of New York to support ratification of the Constitution. Long after that initial purpose became irrelevant, these essays remain read and studied for the crystalline quality of the arguments made within them about the importance of governmental separation of power and the specific ways in which a balance of power can be established and maintained both between the state and federal governments and among the three different elements of the federal government itself. The Federalist papers were meant to reassure the people of New York that a stronger federal system - both symbolized and enabled by the Constitution - would still allow individual citizens to maintain the fundamental rights that they had held under the Confederacy.

But more than this (and this point is perhaps less well remembered today), Hamilton, Madison and Jay argued that the rights of individuals may well be more imperiled by a weak central government than a strong one. That point is certainly a counter-intuitive one for many people, and it was therefore of central concern to the three authors of the Federalist papers. One of the provisions of the new Constitution that would guarantee those individual rights was the concept of judicial review.

Madison, in the 51st Federalist paper, emphasizes the importance of internal checks and balances on the newly proposed federal government. These internal firewalls are now so much a part of our everyday expectations of the ways in which our government works that it may be impossible for us to understand that the New Yorkers (and other Americans) to whom Hamilton, Madison and Jay were writing had no experience with such governmental balances and in many cases no belief that they would work. Madison tried to instill faith in the merits of such internal divisions with statements like this:

TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention (Federalist Paper #51).

But beyond arguing for these separations, Hamilton felt that it was important to define as clearly as possible the roles and powers that each of the branches would have. In Federalist Paper #78, for example, he focused specifically on the role of the judiciary. This is the element of government that Americans today probably think about the least, but Hamilton wanted to reassure the Americans of his time that the courts would not have the kind of far-reaching and arbitrary power that the English courts had enjoyed in the 17th and 18th centuries.

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. (Federalist Paper #78).

The Framers of the Constitution and the authors of the Federalist Papers rejected a basic assumption held by many democratic theorists of their time, including most importantly Montesquieu, that true democracy was possible only in tiny territories with small, homogeneous populations. They also rejected the idea that a strong federal government would necessarily by a tyrannical one. The fact that we now see these federalist arguments almost as inarguable truth results in large measure from the skill with which these points were argued in the Federalist Papers. We now know that individual interests and liberties can be effectively protected in a system of representative government that is open to the voices of all and that while internally divided into separate structures is sufficiently strong to protect its citizens.

The concept of judicial review, repeatedly discussed in the Federalist Papers and of concern to many of the original members of American federal administrations, was not written explicitly into the Constitution - perhaps because the case for the importance of this practice was so well established that it did not have to be.

Conclusion

The concept of judicial review is central to the American system of governance. It is integral to the concept of balance of powers among the branches of government as that balance of powers is defined in the Constitution. It is also fundamental to the concept of an independent judiciary. None of this, however, means that the concept of judicial review is safe from attack or encroachment by the other branches of the government. Certainly a number of legal scholars agree that this is currently the case as the executive branch seeks to extend its powers over both the judiciary and the legislative branches.

Whether one believes that the limiting of the power of the other two branches of government by the Bush Administration and the consequent strengthening of the executive branch (over the judiciary and the executive as well as over the states and individual citizens) depends in large measure on one's own political stance and one's feelings towards this administration. However, even those whose own partisanship inclines them to favor the current administration might want to be concerned about the ways in which the balance of power is shifting. The Constitution is certainly not a perfect document, and it is just as certain that some sections of it should be amended. But its core concepts - and judicial review is certainly one of these, implicit though it be in the language of the Constitution - should not be lightly dismissed for political gamesmanship.