A long while ago, I wrote about some of the main issues I have with judicial review. In short, judicial review upsets the power balance that the American system is built on, and disrupts the functions of the legislature and the judicial branches. In response to my musing about Measure 114, it was pointed out to me that it was judicial review that prevented the law from going into effect. I agree, and the fact that our constitutional rights were defended by the unconstitutional process of judicial review troubles me.
As stated in my musing, judicial review is a legislative process by another name. Defining laws, and determining the meaning of laws, is de facto creating laws. The legislature, when crafting a law, defines terms in order to give meaning to the law. I won’t devolve this musing into a discussion on linguistics, but words mean something, and we use words as a shorthand as an extended definition.
Judicial review is a troubling practice, because there is the possibility that the definition of a law, or constitutional passage, is changed from its original intent, to a more modern intent. The 2nd Amendment is a perfect example of this. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”. Back in the days of the founding fathers, well regulated meant trained on a consistent basis. A regular is a military term for someone who is consistently under arms in an official capacity. Even today, the United States Marine Corps retains the MOS for 0300 infantry regular. It’s an MOS reserved explicitly for recruit training. This is in contrast to today, where regulated is to mean imposing rules, usually in the form of safety regulations. To those who seek gun control, they read the 2nd Amendment as a constitutional amendment that not only allows gun control, it explicitly requires it. Many also read the 2nd Amendment as only allowing arms for militia members due to the militia terminology. Within one single amendment, there is a stark contrast between how it was read at the drafting of the constitution, and how it reads for some people today. I’ve read arguments that used similar examples as to why we need judicial review; We need a final authority to tell us what the law means.
This certainly never happens. Even the best originalist Supreme Court Justices such as Justice Scalia, and even Justice Thomas, have made bad calls on some Supreme Court decisions. A major issue is that the volume of case law is simply too much for any single justice to know. Our legal system has been built in part with this reality, and as such, it is now the job of lawyers to explain the law in question to the justices during court hearings. The majority of time spent at a Supreme Court hearing isn’t focused on the case itself, but rather discussing the laws in question, and defining them. It is here where the original definition can be altered, and a new definition is created. Sometimes the new definition is in the spirit of the old definition, while other times it can completely overwrite the original definition.
The court was never really intended or designed to have such a responsibility. And a responsibility it is, because arguably, cases such as the Dred Scott Decision, pushed the country towards civil war, and many scholars agree that it was an overt act of judicial activism. Plessy V Ferguson also was directly responsible the Jim Crowe era, and a general aparthied situation within the southern United States. The Korematsu decision greenlit the internment of Japanese Americans by the federal government, forcibly removing them from their homes, and confiscating their property. Judicial review not only prevented those affected from exercising their rights, or keep their property, it also prevented the victims from seeking damages. Dred Scott was not considered a citizen, so he could not have his freedom. Plessy could not ride in the same train car as white people could, or engage in similar public activities around white people. The American citizens interred by the American government were eventually compensated, but many had passed away before this occurred, and virtually all of them lived different lives as a direct result of internment. Peoples lives were irreversibly damaged by the decision of a handful of people. The justices used their best judgement, but even their best judgement was not enough.
The court cannot be the final arbiter of what the law means, or even what the constitution means. For the law, the legislature defines what the law means, and the court can only make a ruling based on the circumstances within the case. As for the constitution, not only is it plainly written, but the men who wrote the constitution left plenty of writings about how the constitutional system was intended to function. To me, it’s clear that the men who wrote the constitution were far from a united block, and as such wrote the constitution in the form of many compromises, with checks and balances to ensure that all parties would respect the liberties and powers that each held. I do not see the constitution as a difficult document to understand. It is a rulebook on how our country is supposed to function..