Thanks for joining this episode of the No. 86 lecture series, which continues the conversation
in the 85 Federalist Papers about the proper role of the judiciary.
Today’s episode features Professor Randy E. Barnett, who is the Carmack Waterhouse
Professor of Legal Theory at the Georgetown University Law Center.
He teaches constitutional law and contracts, and is Director of the Georgetown Center for
the Constitution.
As always, the Federalist Society takes no position on particular legal or public policy
issues; all expressions of opinion are those of the speaker.
- How is judicial review implicit in the judicial
power?
Today we’re talking with Professor Randy Barnett about how the Founders understood
judicial review and how the concept evolved as a justification for judicial supremacy.
What exactly is the proper Constitutional role of the courts?
All judicial power is resided in the judicial branch.
This puts a premium on knowing what was the original conception of the judicial power,
what was included within the judicial power.
And included in the judicial power was what we today call judicial review.
It wasn't called judicial review back then, even then it was considered to simply be the
duty of a judge to follow the law.
And that meant following the higher law provided by the Constitution when it conflicted with
any inferior laws or lower laws that would be provided, for example, by an act of congress
or by a law that was enacted by a state.
The judiciary had the power to adjudicate cases and controversies between individual
parties, and that meant it had ability to decide disputes that came before it.
The judiciary was not given some kind of supreme power over all the other branches of government
to direct that they do this, that, or the other thing.
Rather, that when a case came before the judicial branch that was for example depends on a law
that was passed by congress then the judicial branch would have no choice but to ascertain
whether that law was consistent with the powers of congress before it could be imposed on
the people.
The constitution only specifies that there be a supreme court, and basically only specifies
that there be a chief justice of the supreme court.
The rest of the courts are, what the constitution would refer to as inferior courts, are a product
of legislation passed by congress and signed by the president.
So it is the various judiciary acts that congress has passed since the founding of the country.
It's the various judiciary acts that congress has passed since the founding of the country
that comprise and constitute the lower courts.
Indeed, it is an act of congress that decides how many justices there should be on the supreme
court.
That's also not specified in the constitution.
Nine justices is what we have now, it's what we've had for quite a while, but we've had
as few as six justices authorized, which is what it was in the beginning, and as many
as 10 justices that have been authorized by congress.
So congress not only constitutes the lower courts, it actually also constitutes the size
of the supreme court itself.
Can you tell us more about judicial review?
What is it?
Where did it come from?
And why is it sometimes criticized?
The term "judicial review" is nowhere in the constitution, and it isn't really to be found
at the founding.
In fact, the term judicial review doesn't come into common usage until the 20th century,
and it's about that time that Marbury versus Madison assumes its significance as a supposedly
great constitutional case.
Marbury versus Madison simply adopts the view that Alexander Hamilton articulated in Federalist
78, and that is the judges had the duty to follow the higher law when it conflict with
a lower law like a statute.
The higher law is the constitutional, lower law is the statute.
There are many cases before Marbury in which the Supreme Court assumed that in a conflict
between the higher law of the constitution and a statute, a statute would be null and
void if it conflicted with that higher law.
Marbury versus Madison simply represents the first time it finally held that a federal
statute did in fact exceed the powers of Congress, and therefore was unconstitutional and void.
It was simply the first occasion on which that power was used.
It was not the first time that power had been recognized by the Supreme Court.
The idea that Marbury versus Madison invented the power of judicial review came about in
the 20th century, when people were trying to illegitimate the power that were exercised
by the Supreme Court to invalidate, at the time, progressive legislation.
It was then when it was asserted that this was a power that had been invented by John
Marshall.
. . Marbury has sometimes been used to justify
what's called judicial supremacy, and that's the idea that the Supreme Court is somehow
above all of the other branches of government when it interprets the constitution when in
fact, what the judicial power is is the power to decide cases and controversies that come
before the court.
When a case comes before the court and a conflict exists between the constitution and, let's
say, a statute, the Supreme Court has no choice but to follow the higher law of the constitution.
That is its duty, to follow the law.
This does not mean that the Supreme Court's opinions in which they justify their outcomes,
the decisions that they make, need to be followed by all of the other branches of government
as though they were a statute unto themselves.
What needs to be respected is the judgements of the Supreme Court.
When they finally decide a case, the other branches of government respect the judgements
of the Supreme Court, but that's not the same thing as adhering to the opinions of the justices
when they justify their judgements.
Those opinions are, in fact, the opinions of the Supreme Court.
They're helpful to predict what a future Supreme Court will do, and other constitutional are
going to want to know that.
But even Supreme Court justices themselves don't follow all the previous opinions of
... their own opinions, or the opinions of their predecessors when they're deciding a
case, and neither do other branches of government need to follow every jot and tittle of an
opinion of the Supreme Court.
Doesn’t judicial review lead to too much power for judges to rule based on their policy
preferences instead of the Constitution?
What is the debate here?
There are those who criticize the power of judicial review, which is really the duty
of judges to follow the law, because it seems to put the judiciary above the other branches
of government.
But that, in fact, is a misconception of how the separation of powers work.
If congress decides that a particular action is beyond its constitutional powers to enact
it doesn't have to pass a law.
And if it refuses to pass a law because it's beyond its powers to enact a law the other
branches don't get a say in that.
That's congress's decision solely.
If congress decides a particular action is within its powers only then will it get passed
over to the executive branch for the president to decide whether he or she agrees whether
such a power is within the power of congress.
If the president says yes, and only if the president says yes, will the matter then go
to the judiciary.
Alternatively, if the president says no a super majority of congress can override that
presidential veto and then it will go to the judiciary.
So therefore, only if a super majority of the legislature thinks a measure is constitutional,
or a combination of the legislature and the president thinks a measure is constitutional,
only in that case will the judiciary have any say whatsoever.
And under our system, essentially all three branches of government must concur that a
measure is constitutional before it can be imposed on us, we the people.
And this is an ultimate check on the power of the government as a whole, that all three
branches must concur.
This does not make the judiciary a superior branch, what this makes is the judiciary is
an equal branch.
So it has an equal say in whether a measure is constitutional along with those of the
legislative and the executive branches.
Some people accuse the Supreme Court of being a policy making institution and acting politically.
And in fact, it could be a policy making institution if justices were to act on the basis of their
own views of what good policy are, as opposed to enforcing the original meaning of the text
of the constitution.
. . The more the justices follow the text of the
constitution, the original meaning of the text of the constitution, the less it will
matter what their political preferences are because they still have to follow the law
the way everybody else has to follow the law.
If, in fact, they get to update, revise, change, or supplement the original meaning of the
text, then it would matter a great deal what their political views are because they're
going to update it according to their political vision.
That's another reason why the original meaning of the text of the constitution is less political
than living constitutionalism, which depends entirely, or almost entirely, on the political
views of those who are now updating the text of the constitution.
The constitution is not the law that governs we the people.
It's not the law that governs us.
What is it?
It's the law that governs those who govern us.
And those who are governed by this law can no more change the law that governs them without
going through the change process, which is the amendment process, than we the people
can change the laws that are imposed on us without going through the legislative process.
Take speed limits for example.
We don't get to change the speed limits that are imposed on us when they are set unreasonably
low.
To change a speed limit we have to go through the legislative process.
And by the same token, those who are governed by the text of the constitution can't change
the text of the Constitution without going through the amendment process.
Unlike the people, who are never asked for their approval of the US Constitution, each
and every person who receives power under this Constitution does so after taking an
oath to be bound by this constitution, which means the written Constitution.
They cannot change the law that they are taking an oath to be bound by, or that oath would
be, essentially, an oath to nothing.
It would be an oath to follow the text of this Constitution however they wish that text
to read.
That would not be an oath at all.
So, we give power under this constitution to individuals in government in return for
their oath to follow the constitution, which means they cannot change the constitution.
And this goes for the judiciary as well as the legislative and executive branch.
The judges who take an oath to follow or adhere to this constitution cannot change its meeting,
even where they think that the original constitution's meaning is deficient
This all leads to a very simple proposition, and that is the meaning of this constitution
must remain the same until it's properly changed.
The meaning of the constitution must remain the same until it's properly changed by amendment.
And that is a one sentence shorthand for originalism, meaning, the text of the constitution is its
original meaning.
The meaning it has before it's properly changed by amendment.
Thank you for listening to this episode of the No. 86 Lecture series: Continuing the
Conversation in the 85 Federalist Papers about the proper structure of government.
The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging
discussion and critical reflection relative to how each subject is widely understood and
taught in law schools and among law students.
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