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Judicial Review is Democratic, and the People are the Final Interpreters of the Constitution10/21/2020  During Judge Amy Barrett’s confirmation hearings, many Senators, House members, and other notable figureheads tried to avoid conversations concerning the possible overturning of judicial decisions they support. As confirmation proceedings began, those conversations manifested in their questions to the nominee. In those, many have brought up three predominant cases that have shaped much of America’s legislative policies: Roe v. Wade, Obergefell v. Hodges, and National Federation of Independent Business v. Sebelius (Obamacare). Notable names have appeared fueling the discussion about the possibility of overruling. Among them, House Speaker Nancy Pelosi, Senator Dianne Feinstein, Senator Chuck Schumer, Presidential Candidate Joe Biden, and many others. The concern over these issues highlights a prevailing problem among the people and, even more so, among elected officials: the Framers of the Constitution, in giving the Court power to nullify congressional acts via judicial review, never designed our judicial institution to be the final interpreters of the Constitution. And this makes judicial review a democratic process—giving the power of final interpretation to the people of America, not to any one institution.
In 2014, President Obama was facing scrutiny over his executive action concerning immigration. Representative James Clyburn (D-S.C.) committed to the all-too-known “deference to the courts” argument by stating, “Let’s let the courts decide whether it’s constitutional. That’s not for Congress to decide, that’s why we have courts to make that decision.” [1] But we have to ask the question, is it really the job of the Congress to defer to the courts? The short answer, no! Turning back to Article III of the US Constitution, section 2 enumerates, “The judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made … under their Authority.” [2] Some argue that this is not a clear description of the powers of the courts, and this may have been given some legitimacy given that the process of judicial review was not "codified" until Chief Justice Marshall gave a non-decision in Marbury v. Madison. In that case, although the appellee was entitled to his commission, the proper channels of appellate review had not been met, and the Supreme Court did not possess original jurisdiction under the Judiciary Act of 1789 to hand down a decision. What Marshall formulated was this idea of judicial review, of which even the Founders’ exposited. In The Federalist Papers, Hamilton constructs an argument that judicial review is democratic, and that the power of original Constitutional interpretation did not reside in the courts. That power belonged exclusively to the people, through the Legislative branch but ultimately by the people in the Constitution. The concern of the Anti-Federalist papers was that “the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void.” [3] But Hamilton, in Federalist no. 78, responds clearly by stating “that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that … the representatives of the people are superior to the people themselves.” [4] Judges, therefore, do not help make law; they merely judge it based upon the controlling standard of the governing document, a.k.a. the Constitution. So yes, the courts do interpret law, but they interpret law based upon the interpretation of the law as it “proceeds from the legislative body,” and the courts must judge as “the intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” [5] If, however, there is an “irreconcilable variance” between the meaning of the Constitution and the meaning of acts that come forth from the legislature, it must be deferred to Congress for clarity and review so that they can exposit further the intent of the act. [6] All of this to say, the people are superior to any branch of the government. The legislative acts upon its own will, which must proceed from the power of the people, and the executive must enforce that law. The courts interpret based on the Constitution so that the theory of self-government can be actualized in the people’s authority. If the courts do overturn the aforementioned rulings, they would not be doing anything unconstitutional, since none of these cases arose from the proper authority. And if the people wish to do something about it, the Constitution ensures that the will of the majority do have courses for remedy. Elected officials can restructure the courts, impeach judges, “strip” appellate jurisdiction from the Court, and the states of the Union can call for a constitutional amendment, all of which are prescribed in the Constitution. But the desire for political expediency, through the legislative ruling of the courts, is a desire most threatening to the political independence of the people. It destroys any hope for a citizen-governed Republic. And contrary to many Democrats’ beliefs about our country, it is most certainly not democratic. If the citizenry of the US wishes to continue having a voice in their government, they must keep their political desires out of the courts, for “where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former.” [7] [1] Greg Weiner, “When Deference is Dereliction,” Law & Liberty, 26 November 2014, https://lawliberty.org/when-deference-is-dereliction/ [2] U.S. Const., art. 3, sec. 2, cl. 1. [3] Alexander Hamilton, John Jay, and James Madison, “Federalist No. 78,” The Federalist Papers: The Gideon Edition, ed. George W. Carey and James McClellan (Indianapolis: The Liberty Fund, 2001), 403. [4] Ibid. [5] Ibid., 404. [6] Ibid. [7] Ibid. - Matthew Ferri (edited February 12, 2021)  Ancient philosophers wrestled with timeless questions concerning which political regime sufficiently guided citizens toward their proper telos. In Greek, this word can be defined as the inherent purpose that a person or object must come to. However, to answer those questions, the philosopher had to first ask, “what is the natural end that all men must come to?” This is precisely because the flourishing of a community rested upon what was evidently “good” in nature. In turn, this reflection of good would bring healthy social relations among the people. Modern citizens struggle with this idea, predominantly because they have fallen into the philosophical trap of postmodernism. But if we are to correctly gauge justice in society, we must begin with mankind and what is good for them. When a society fails to grasp and define a standard that exists for healthy flourishing, division and strife conquers its heart and habits. A standard does exist, and the habits of citizens are such that a proper telos brings liberty instead of licentiousness, responsibility instead of dependency, and neighborly love instead of material love.
Let us take two philosophers who argued for the idea of good: Plato and Aristotle. Though both men were not Christians, the imago Dei was so evident in their philosophy that they could not deny its existence. Plato, in his cave allegory of the Republic, submits that “in the knowable the last thing to be seen … is the idea of the good; but once seen, it must be concluded that this is in fact the cause of all that is right and fair in everything;” the soul of man, however, in its whole “must be turned around from that which is coming into being together with the whole soul until it is able to endure looking at that which is and the brightest part of that which is.” [1] If you are not familiar with the allegory, imagine being shackled as a prisoner in a cave, unable to see the light that one would see if they were to step outside. Instead, all you see are the shadows of passerby figures that are projected on the cave’s wall. Then, one day you are freed from those shackles and brought out from the mouth of the cave where you can see the reality of those figures because the light has opened your eyes. In other words, the prisoner sees the form (or light) that produces understanding, which is good. Aristotle, although he critiqued much of the Republic, agreed that there exists a standard that is natural. He argued that good is “that for the sake of which everything else is done.” [2] It can be easily understood as a consequential effect that every good thing continues pointing to; thus, there is an “end” to which all other goods converge upon, reaching their end in the “superabundance of goods” that is sufficient and needs nothing to complete it. [3] Politically speaking, and biblically speaking for that matter, the community which reaches its telos is the city, and that “while coming into being for the sake of living, it exists for the sake of living well.” [4] God makes it clear in His revelated Word that societies were formed in a fallen world for a primary purpose: to establish justice under the Moral Law. The Noahic Covenant instituted in Genesis 9 has not been done away with and is at the sovereign directive of God. Specifically, for the shedding of man’s blood, “By man his blood shall be shed” (v. 6a). And we know it has not been done away with because Romans 13:4 reveals to us that government authority is a servant of God for our good, “for it does not bear the sword for nothing.” Because that standard exists, and because it exists beyond ourselves in our Lord, properly ordering our lives provides freedom and liberty. However, this liberty does not give us the option to live licentiously. Alexis de Tocqueville, the famed Frenchman who did not know Christ personally, describes two kinds of liberty: a liberty of “corrupt nature” and a “civil, a moral, a federal liberty.” [5] The former is inconsistent with authority, “impatient of all restraint” and given to personal license; the latter (the better option) is “the proper end and object of authority … which is just and good; for this liberty you are to stand with the hazard of your very lives.” [6] True liberty allows for restraint, and it orders our lives in such a way that we are free to do whatever we want within the proper boundaries. To this end, liberty is more important than equality. This was the danger Tocqueville warned against, for he saw the advancement of “equality of conditions” as a “gradual” and “providential fact.” [7] The question must be asked why? Plainly put, men who desire equality of conditions generally mean the equality of material conditions, or the gain of material property and wealth. And due to this fact, men would rather find themselves comfortable with “general apathy” for the problems that their communities face, which is “the fruit of individualism.” [8] In fact, it is this fear of material discomfort that produces a passion for “public tranquility” that “emanates as the sole political passion that these peoples preserve.” [9] Much has been said about this topic as it relates to the rise of progressivism and “social welfare.” But as this one singular passion increases, every other one slowly weakens until death, “naturally [disposing] citizens to constantly give the central power new rights, or [allowing] it to take them.” [10] Therefore, as men become settled to this habitual nature, the spirit of the city that has long been held as a proper telos is replaced with a devilish one -- one that is revealing its true colors in modern society. That new spirit is the one a child expresses. It is dependent, and it makes citizens believe they are incapable of conducting their own affairs, submitting them to the power that they presume will care for them as a parent and nanny. [11] If we take the adage that “absolute power corrupts absolutely,” we ought not stand for the very thing that has ruined societies throughout history: unrestrained power. If it is true that the people have been given authority, then we must begin to take hold of the appropriate mores that are necessary for living freely and avoid the general apathy of individualism that will instead enslave Americans to an inappropriate telos. We must learn, once again, how it is we are to live freely. For neither apathy nor despotism “can found anything lasting … They rise because nothing can resist them, and they fall because nothing sustains them.” [12] [1] Plato, Republic, trans. Allan Bloom (New York: Basic Books, 1968), 517b-518d. [2] Aristotle, Nicomachean Ethics, trans. Robert C. Bartlett and Susan D. Collins (Chicago: University of Chicago press, 2011), 1097a 18-19. [3] Ibid., 1097a 26-36, 1097b 19. [4] Aristotle, Politics, trans. Carnes Lord (Chicago: University of Chicago Press, 1984, 2013), 1252b 28-30. [5] Alexis de Tocqueville, Democracy in America, trans. Harvey C. Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000), 42. [6] Ibid. [7] Ibid., 6. [8] Ibid., 704. [9] Ibid., 643-644. [10] Ibid., 644. [11] Ibid., 665. [12] Ibid., 704. Matthew Ferri |
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