Sunday, July 03, 2005

Judicial Review: a Rock and a Hard Place

I have just finished reading Chief Justice John Marshall's landmark decision in Marbury vs. Madison setting the precedent for judicial review. In the America of today, it is almost unbelievable to think that the Supreme Court is not the highest law in the land, yet it was not always so.

I don't believe I've come down on one side or the other of judicial review, at least explicitly. I have certainly been aprehensive of the growing power of the court, but in truth, I do not know what to do about judicial review.

Marshall wrote, "The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it."

And this seems to be the whole crux of the issue. It would be great if the legislature simply followed the constitution. If they did that, we would not have need for the supreme court at all, or as Madison puts it in Federalist no. 51, " If men were angels, no government would be necessary."

So then, someone must keep Congress and the President in line. Without judicial review, there is nothing to stop the government from treading the constitution under foot. Yet has judicial review helped to preserve our constitution? It seems to me the contrary is true. The Patriot Act has yet to be over-turned, we still interned the Japanese, and the court has used an implied a "right to privacy" to render the 10th amendment all but useless.

I have no answer here, and this bothers me. It seems the problem is in mankind. And for that we have no fix. We are set with two six-sided dice and told to roll a thirteen. We cannot get more dice and we cannot get new ones with more sides. Still we roll.

Even if we could, scrapping judicial review probably wouldn't do anything. Instead of having the Supreme Court ruin everything, we'd have the Congress or the President do so. It makes no difference, republics are untenable at least in the long run.

Now I'm not saying it's all going down right now, only that it will. Nominating a strict constructionist in the place of O'Connor may slow down the impending tide, but the waves will crash into this wonderful human experiment.

What lessons can we learn to provide to the next people who try to run a republic? Can we embue them with some of our wisdom--the little we have--in the hope that they can last just a little bit longer?

It seems we shouldn't ask "who guards the guards?" but rather, who can possibly do so?

No comments: