Term Paper: Judicial Review

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[. . .] Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention (Federalist Paper #51).

But beyond arguing for these separations, Hamilton felt that it was important to define as clearly as possible the roles and powers that each of the branches would have. In Federalist Paper #78, for example, he focused specifically on the role of the judiciary. This is the element of government that Americans today probably think about the least, but Hamilton wanted to reassure the Americans of his time that the courts would not have the kind of far-reaching and arbitrary power that the English courts had enjoyed in the 17th and 18th centuries.

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. (Federalist Paper #78).

The Framers of the Constitution and the authors of the Federalist Papers rejected a basic assumption held by many democratic theorists of their time, including most importantly Montesquieu, that true democracy was possible only in tiny territories with small, homogeneous populations. They also rejected the idea that a strong federal government would necessarily by a tyrannical one. The fact that we now see these federalist arguments almost as inarguable truth results in large measure from the skill with which these points were argued in the Federalist Papers. We now know that individual interests and liberties can be effectively protected in a system of representative government that is open to the voices of all and that while internally divided into separate structures is sufficiently strong to protect its citizens.

The concept of judicial review, repeatedly discussed in the Federalist Papers and of concern to many of the original members of American federal administrations, was not written explicitly into the Constitution - perhaps because the case for the importance of this practice was so well established that it did not have to be.


The concept of judicial review is central to the American system of governance. It is integral to the concept of balance of powers among the branches of government as that balance of powers is defined in the Constitution. It is also fundamental to the concept of an independent judiciary. None of this, however, means that the concept of judicial review is safe from attack or encroachment by the other branches of the government. Certainly a number of legal scholars agree that this is currently the case as the executive branch seeks to extend its powers over both the judiciary and the legislative branches.

Whether one believes that the limiting of the power of the other two branches of government by the Bush Administration and the consequent strengthening of the executive branch (over the judiciary and the executive as well as over the states and individual citizens) depends in large measure on one's own political stance and one's feelings towards this administration. However, even those whose own partisanship inclines them to favor the current administration might want to be concerned about the ways in which the balance of power is shifting. The Constitution is certainly not a perfect document, and it is just as certain that some sections of it should be amended. But its core concepts - and judicial review is certainly one of these, implicit though it be in the language of the Constitution - should not be lightly dismissed for political gamesmanship.

Works Cited

Brest, Paul (ed.). Processes of Constitutional Decisionmaking: Cases and Materials. Denver: Aspen, 2000.

Calabresi, Guido. "The Current, Subtle - and Not So Subtle - Rejection of an Independent Judiciary." U. Pennsylvania J. Constitutional Law 4 (4): 637, 2002.

Hamilton, Alexander, James Madison and John Jay. New York: Mentor, 1999. http://www.cic.nyu.edu/pdf/E23SummaryConstitutional%20Court%20Judicial%20ReviewAHaq.pdf




Levy, Leonard Williams. Original Intent and the Framers' Constitution. New York: McMillan, 1988.

Monk, Linda. The Words We Live By: Your Annotated Guide to the Constitution, New York: Hyperion, 2003.

Whittington, Keith. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. Lawrence: U. Of Kansas P, 1999.

An independent judiciary which applies rules of law, whether the laws are derived from old or relatively recent sources of values, is a pain in the neck to any government that wants to get things done. Whether the government is democratic or totalitarian, right-wing or left-wing, courts get in the way. Courts are a great source of political transaction costs -- they create inertia when the government wants to change course.

This is not solely an American phenomenon. In Italy, for example, a newly elected government of the right is fighting with its magistrates, who persist in following their view of the law rather than carrying out the policies of the new administration. One of the most dramatic examples of this conflict in Italian history can be found in the time of fascism, when Italian judges were formalists to a degree unknown almost anywhere else in the world. In contrast to functionalists, who make the law respond to certain societal ends, these formalists carried out old law and thereby preserved its values. Those values, which were economically and politically libertarian values from the nineteenth century, got in the way of fascism.

When traveling in Italy in the 1920s, Roscoe Pound could not understand why there were almost no serious scholars of law, from his point-of-view. All the scholars who were legal sociologists, like Pound, who made the law do what the society wanted, were fascists. All the people who seemed like serious scholars were making the law consistent with what it had been a hundred years before, which to Pound was madness. After the war ended, several great Italian scholars said, "Now we can be functionalists, now that there's no longer a dictatorship. We can make the law come to do what the society wants." To which others said, "And what about the next dictatorship?"

While all courts do not seek to preserve an old order, they do get in the way. Therefore, courts and judicial institutions will constantly be under pressure to behave less like courts -- to act less independently and be more responsive to the immediate needs of the majority. There will also be pressures to take issues away from courts and give them to bodies that will not be independent. When these pressures escalate, conflict arises. There is then [END OF PREVIEW]

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