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U. S. Constitution Gives No Authority for Judicial Review

Posted on July 1st, 2014 by Ben Spera

GavelDespite the fact that the Supreme Court’s current case-load consists almost exclusively of judicial review cases, the Constitution gives the courts no authority to take such action. The courts assume this power based on a 1794 Supreme Court ruling which first declared a law unconstitutional. The power of judicial review is a serious conflict of interest issue, giving the federal government the power to judge the constitutionality of its own laws. It also gives an unintended amount of power to the judicial branch of the U.S. government, which was originally meant to be the weakest branch of the federal government.

The most worrying is that after a Supreme Court decision there is really no recourse,  it’s decision is final. You can not elect a new SCOTUS and change things as you can with the legislature and President. Constitutionality Crisis has an excellent write up detailing the problems with judicial review.

Source: Constitutionality Crisis

  • I suspect that Ben is not a legal scholar. Thus, I will have to respond to this post as though I were talking to those who have no background in the statutory or constitutional law. So, let's begin by assuming that the Supreme Court did not have the right to rule on the constitutionality of a law. What recourse would be available to We the People when Congress passes a law that conflicts with our constitutional rights or when the Executive attempts to act unconstitutionally? Don't rush on. Think about it. What could We do if we didn't have recourse in the courts?

    Therein lies the problem. If we can't settle the issue in court, our only recourse is in disobedience. What then? The Executive will attempt to enforce the law by force if necessary. What then?

    Again, pause. Think about it.

    Now, dwell on this one. What if the court fails to nullify an unconstitutional law? Think about it.

    • No, I’m by no means a legal scholar. I would suggest that our method of recourse in that circumstance would be to elect new legislators in the next election, who would in turn vote to change the unconstitutional law. It may not be feasible, but that avenue does exist.

      In your opinion, what do you suggest we do in the case of Voter ID? The American people, through the legislature, have voted legislation into law multiple times but the courts have judged it unconstitutional. Now, despite the will of the people, the courts have prevented the American people from enacting legislation that they want. If the Supreme Court rules it unconstitutional there is absolutely NO RECOURSE, forcing the American people to submit to the will of the judicial branch. It doesn't seem as tho the PEOPLE have any way around judicial review via the other branches of gov't.

      Thanks for the comment, Jack!

  • Interesting options that you offer. Let's look at each.

    Elect legislators who will rescind unconstitutional laws. Let's use the ACA as a test of that theory. The ACA is unconstitutional. The Supreme Court declared its main enforcement provision as a tax rather than an unconstitutional breach of our 5th Amendment Rights. However, as a tax it is unconstitutional in that it did not originate in the House. Still, the law stands and continues to do irreparable damage to the health care industry. Will some future Congress be able to rescind it and put our health care industry back together again. Doubtful. In other words, this manner of recourse is not timely.

    Next you open discussion of the people's right to enact legislation, but that really isn't a recourse, is it? Thankfully, we don't live in a democracy wherein any law enacted by popular election would be enforceable. Think about it. The majority of Americans are not black. Thus, the majority could vote to reinstate slavery and that would be the law of the land. Fortunately, it would not be constitutional in this Constitutional Republic. All laws must comply with the terms of the Constitution. Thank God.

    I admit that I still haven't allayed your fears of tyranny at the hands of the Supreme Bunch – er, Bench. Indeed, I have been very unhappy with some of their judgments. Still, it is far more difficult for 9 cantankerous justices to form a tyrannical coalition than one boy king sitting in the White House.


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