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The Matter of Judicial Review

The words judicial review do not appear in the Constitution, and their absence has confounded generations of Americans. The convention delegates agreed to the establishment of a Supreme Court only after they had rejected proposals for a Council of Revision to scrutinize congressional legislation and another to allow Congress to veto state legislation. That the delegates debated these methods of constitutional oversight in the context of the judicial power indicates that they assumed the Supreme Court would oversee the constitutionality of acts of Congress and state legislatures. Experience in the states had already confirmed that such a power was indispensable in republican government to the maintenance of the rule of law.

There seems little doubt that the framers anticipated that judicial review would be exercised; the only unknown was its scope. Luther Martin, an Antifederalist, for example, observed during the convention that "As to the constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws." 21 It did not follow that they could do what they wanted; delegates of every ideological stripe posited a sharp distinction between constitutional interpretation necessary to the rule of law and judicial lawmaking. "The judges," John Dickinson, a Federalist, concluded, "must interpret the laws; they ought not to be legislators." 22

There was also a textual basis for the exercise of federal judicial review, especially of state laws. Article VI made the Constitution the "supreme Law of the Land," and in Article III the courts were named as interpreters of the law. 23 The same conclusion can be reached by combining Article 1, section 10, which placed certain direct limitations on the state legislatures, with the supremacy clause and Article III. Simply put, judicial review of state legislation was an absolute necessity under the framers' compound system of federalism. The Supreme Court could also inquire under the departmental theory into acts of Congress that encroached on the judicial branch. The scope of this power remained to be worked out. "That the Framers anticipated some sort of judicial review," the great constitutional scholar Edward S. Corwin wrote during the 1930s, "there can be little question. But it is equally without question that ideas generally current in 1787 were far from presaging the present vast role of the Court." 24

 

A Compromised Document for a Government at a Distance and Out of Sight

The ratified Constitution rendered most existing republican theory obsolete. It did so in little more than 6000 words, giving new meanings to federalism, separation of powers, popular sovereignty, representation, and judicial authority.

-73-

Two features distinguished the nation's new organic law. The first was that the United States was not one republic or even thirteen; it was a multitude of several thousand insular political communities that would continue for the next sixty years to view the national government as "at a distance and out of sight." 25 The national government had become federal, but decentralization and local authority remained pervasive. The local jury, not the new Supreme Court, provided citizens with their most immediate contact with the rule of law. The militia, not a national army and navy, protected public safety.



Second, the Constitution was also compromised. Federalists and Antifederalists accommodated their differences. That the Federalists got the better of the matter meant that, over the next two centuries, the national government would afford advantages to commerce.

Such an advantage had long-term consequences because of the sectional compromises over slavery on which the document rested. What was left unsaid in the new document was as important as what was explicit. The words "slavery" and "slaves" do not appear in the Constitution, but concern about the peculiar institution nonetheless shaped the document. If the Federalists, some of whom were slaveholders themselves, generally prevailed, they did so only by granting significant concessions to southern slave and agricultural interests. Slaveholders were overrepresented in Congress by having three-fifths of all slaves counted for the purpose of apportioning House seats. They were protected from direct taxes on their slaves, they enjoyed a pledge of aid from the national government to return escaped slaves, and they were guaranteed a steady flow of imported slaves until 1808. Political compromise came wrapped in constitutional language, even though the framers understood that law and politics had to be separated.

The compromises over slavery seeded long-term conflict, but the generation of the framers fell into disagreement over other more immediate matters. One of the most troubling involved the proper role of law, parties, and political opposition: a balance would have to be struck between law and politics in the new republican governments, both in the nation and the states. Federalists and Jeffersonian Republicans struggled with these matters for a quarter-century after ratification of the Constitution.

 


Date: 2015-01-29; view: 729


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