Who really has the power to determine constitutionality? It is not the Supreme Court, but rather the states and the people. Marbury v. Madison may have been the most influential court decision in the history of the United States. It may have also been the first nail in the coffin of the United States thanks to a misunderstanding of what the ruling meant.
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Constitutionality vs Law
Definitely the SCOTUS is the supreme court of the United States, by definition. It has final authority on deciding matters of law. However, that simply means that it has the final say on whether or not an entity has violated a law. This does not equate to determining whether or not the SCOTUS has the power to dictate whether or not a law violates the constitution.
The SCOTUS was not explicitly given power to determine constitutionality, and under the opinion of strict interpretation, it does not have that power. It’s well known that, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” as per the tenth amendment. Now many have said that the power is implied. Well fortunately the constitution does not work that way. We cannot guess what powers the founders might have wanted the federal government to have.
English Common Law
An alternative argument is that judicial review is a clear power of the United States constitution since our government is based on English common law. It’s true enough that the foundation of our legal system is the English common law system and it’s also true enough that judicial review was a power held by English courts. However what people who make the argument fail to recognize is legislative supremacy. According to English common law, the parliament had supreme authority over law and therefore judicial review does not extend to laws produced by parliament. The equivalent of parliament in the United States government is congress. Therefore even by English common law, the Supreme Court does not have authority over constitutionality.
Is Judicial Review All That Bad
Is judicial review all that bad? It depends on what is meant by judicial review. Judicial review can mean that the SCOTUS determines what is constitutional, or it could mean that the SCOTUS is obligated to rule in accordance with the constitution.
Final Word
If by judicial review, one means the ability to determine what is and is not constitutional, then the answer is yes. Giving a select few un-elected individuals appointed by the President is most definitely a bad idea. Far too often the SCOTUS lets through unconstitutional legislation, much of which abuses the rights of the states and the people. Recent examples are the Patriot Act and PPACA. The Supreme Court used the same shady criteria to determination of constitutionality of these laws as was used in the creation of judicial review: while the constitution did not specifically grant the federal government the authority, the power to implement these programs was “implied”.
Court Obligation
However, it is important to note that there is a second form of judicial review. The second form is simply the application of the constitution to legislation. This sounds like the exact same situation as mentioned above. However, it is not. In the first case, the court is the final arbiter of what is and is not valid law. In the latter case, it is just creating an obligation of the courts to use their best judgement to rule in accordance with the constitution, even if the law is in opposition to the constitution.
Marshall’s Decision
This is exactly what was meant in the landmark case: Marbury v. Madison (1803).
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
Nullification
However the conflict between the state and federal governments goes back much further. One of the key factors that started the civil war was judicial review. The confederate states did not consider the power of judicial review to be valid. They instead asserted that state nullification was the proper method for determining constitutionality. Using nullification, the states would simply declare a law to be unconstitutional and thus null and void. When the federal government would not budge on the issue, the states felt that they had no recourse but to secede from the union. The nullification crisis that occurred before the civil war, mirrors in many ways, the current conflict between the states and the federal government. In a same way that states then passed laws trying to nullify restrictive federally implemented tariffs, states now are trying to protect the people against abusive legislation like PPACA.
Note that just because states have tried to nullify legislation does not mean that they can. It’s more complicated than that. While there is some debate, there is a general view that the constitution is a compact between the people and the federal government, not the states and the federal government. Therefore it is the people who have the power of nullification. But at the same time, the states represent the people, as they did when the constitution was originally ratified. Therefore one could also argue that state nullification is nullification on behalf of the people.
Arbitration
The constitution and similar documents really just boil down to a contract between the government and the people. This is why the constitution determines the validity of law. Since the constitution is a contract, disputes can be settled in much the same way as standard contractual disputes are settled. One such method is arbitration. Contractual agreements do not need to be handled through a legal system because of this alternative. The difficulty of course is picking an arbitrator. The SCOTUS is not a valid arbitrator since it was formed by the contractual agreement. It has a vested interest in the result. However, in each case, the states or the people can choose an arbitrator outside of the United States.
Further Reading
1. Nullification: How to Resist Federal Tyranny in the 21st Century Hardcover (Amazon.com)
2. Elkouri & Elkouri: How Arbitration Works, Seventh Edition (Amazon.com)