Should We Abolish Judicial Review?

Should we abolish judicial review?

That’s a tricky question. It’s easy to argue that the practice was never intended to be used. Jefferson said as much after John Marshall kept sticking his nose into every constitutional question, both at the federal and State level.

Marshall wasn’t the first to do it. The Supreme Court declared a federal law to be constitutional long before Marbury v. Madison.

Alexander Hamilton’s push for more federal taxes made it to the Supreme Court in 1796. Hamilton, in fact, argued in favor of the tax before the Court using the same language he deployed in persuading George Washington to accept the clearly unconstitutional Bank of the United States (language that Marshall and Daniel Webster would later rely on to fend off attacks against the Bank in 1819).

Patrick Henry said in the Virginia ratifying convention that he hoped the Supreme Court would use judicial review to strike down unconstitutional federal laws.

That would be useful. State laws were another matter. Very few members of the Philadelphia Convention in 1787 thought the federal government should have a veto over State laws. John Rutledge of South Carolina said such a prospect should “damn the Constitution.” Every time it was proposed, it was soundly defeated.

In other words, if the Supreme Court has the power of “judicial review,” then the originalist position would be that it is only used in regard to federal law, not State law.

But we know that’s not how the federal courts use it today, in part because every American thinks he has a “1st Amendment” or “2nd Amendment” right to do something.

We’ve “nationalized” everything, even when we know that the Constitution did not create a “national” government.

The 14th Amendment did not change that–nor did it incorporate the Bill of Rights, but that’s another story.

Joe Biden’s commission on federal courts thought that we should reconsider judicial review. I agree, but the better path would be to give teeth to the 10th Amendment.

No federal judge should be able to invalidate a State law that does not conflict with Article I, Section 10. News flash. The conflicts in the modern culture war aren’t outlined in that part of the Constitution.

Of course, the topic makes great podcast fodder, so I discuss it on episode 557 of The Brion McClanahan Show.