The American system of governance was created with the express intent on maintaining a delicate balance of power through checks and balances, and judicial review completely overturns this balance of power. The Supreme Court should not have the power to unilaterally change how laws function via interpretation.
Any discussion about how the American system was set up and intent on function requires historical and philosophical context. The first version of the American system of governance was set up under the Articles of Confederation, which more or less bound the several States, which were de facto independent nations, together in a loose overall confederacy. There were many issues that occurred between the states, between the states and the central government, and the central government and foreign governments. State militias, such as the militias of New York and Pennsylvania, were attacking each other in order to enforce their State’s customs taxes, or in response to the enforcement of State customs. The national government could not raise taxes to pay off foreign debts, and could not arbitrate disputes between the States. The situation was growing into a potential crisis that could break the confederacy apart. When the framers of the modern Constitution met, and set out to design a better system, many feared that a strong federal government would eventually assume the power of the States, and eventually lead to the slow withering death of the States. In order to prevent the federal government from growing too large, the framers built a system of checks and balances that was intended to prevent the federal government from taking powers by balancing the interests of the three branches of government. Broadly speaking, the legislature, executive, and judiciary, are all supposed to ensure that the others remain inside their scope of responsibility as outlined in the Constitution.
The Judicial branch, as outlined in Article 3 of the Constitution, is the shortest article for the three main branches of the federal government. In it, the article basically describes the function and purpose of the federal judicial system. The Supreme Court is the highest court in the land, and it, along with its subordinate courts, are tasked with settling disputes within the federal government, between the federal government and the States, any issues or disputes between the States, anyone committing crimes across State lines, and anyone breaking any federal laws. More or less, the judiciary is supposed to be a referee when it comes to settling intergovernmental disputes at various levels, and to be the judicial systems when it comes to federal or interstate crime.
No where in Article 3 is it mentioned that the Supreme Court, in regards to hearings on Constitutional law, will interpret the Constitution. Nor should it have this power. The framers of the Constitution, arguably both the Federalists, and Anti-Federalists, would agree that bestowing such a power and responsibility to the Supreme Court would both weight the power of the federal government towards the Judiciary, and eventually lead to a political fight to the death over ensuring political control over the judiciary. If it is the court deciding what the law means, then it is the court that can control how the law functions. If the legislature passes a law with a certain intention, but the Supreme Court can interpret that law another way, then the function of the legislature is ancillary to that of the court. If the court has the final say on what the law means, why even have a legislature to begin with? Why not just have the Supreme Court dictate laws from court edicts?
Judicial review came about due to the 1803 case of Marbury V Madison, in which Chief Justice John Marshall believed that judicial review was implied in the power of the court, as it is not explicitly written anywhere in the Constitution, and inferred to exist as a responsibility that judges hold in civil cases. What is explicitly written is that if federal laws are violated, or there is a dispute, a jury will be convened, and the Supreme Court will essentially, as stated previous, will act as a arbiter to mediate the differences. The jury will ultimately conclude a verdict, which the court will execute on.
This is an unsurprising formulation of a common law system. The basis of common law dates back to pre-Norman days, to the Anglo-Saxon days, and was fully formed after 1066. After the Norman invasion, the king of the united England had to issue fiefdoms to his lords and dukes. Under the feudal system, feudal lords had many duties to their fiefs, including acting as a magistrate in disputes and law. Many of the lords were not originally from the lands they ruled over, so they differed to a jury to interpret the law, and to decide the outcome of the case. The lord/magistrate’s only responsibility was to execute the decision. This is why modern courts still use juries, rather than a judge acting as both.
The reason judicial review disrupts the delicate balance of power that exist between the three branches of government is because it gives a power to the judiciary that it was never intended to have under the ideals of common law, and it interferes with the function of the legislature. Judges were never intended to interpret the law under common law. To understand common law in the literal sense, common law is the law as it is commonly understood by those the law rules over. A judge dictating what the law is to the people does not change what the law is, as that is not what it is to the people. Furthermore, to interpret laws is to create law, which is a function of the legislature. The legislature, when drafting a law, defines what the law is, and how it will function. If another, independent body, can overturn the legislature’s understanding of what the law is, then the legislature becomes a vestigial organ that only exists to give those who empower the legislature the feeling that their vote matters. It is for these two chief reasons that judicial review needs to be overturned.
Judicial review needs to be overturned not only because it was never intended to work within the American system, but the danger that it creates is ever growing. With this exceptional power to create laws unchecked by the judiciary, the delicate balance of federal power is tilted towards that third branch. Because of this, the interests are no longer balanced, and for those seeking domination over their fellow men, will seek to uproot any of their enemies, and gain control of the institution. For this reason, hearings on who shall sit at one of the nine oligarchs on the Supreme Court has transformed from mundane Senate hearings, to vile political fights, with justices themselves threatened by assassination attempts. Even lower federal court judges, or even courthouses are not immune. The American judicial system, once seen by most in pristine ideals, is now believed to be rife with corruption from all political sides. In some cities, such as Portland, Oregon, the federal courthouse was sieged by people who believed that the federal court system was facilitating a fascist police state. Others still see the court system as in bed with the Democratic National Convention, as numerous people still sit in federal jail, at the time of this writing, never once given their day in court for their alleged actions on January 6th, 2020.
The judicial system of the United States cannot continue to function in a seemingly independent, disassociated of interest, if judicial review is allowed to continue. Politics must exist within the legislature, and executive branches, and the judiciary must be understood to be above the petty squabbles of politics. Judges must not be allowed to interpret what laws mean, or how they function. Judges themselves must understand that they hold an exceptional responsibility, and the people must hold judges accountable to their responsibilities. No one is coming to save the American system, so it is up to the Americans to understand what is causing their system to malfunction, and to correct the issue.