Judicial Review is Democratic, and the People are the Final Interpreters of the Constitution

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)

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