Judicial Review and Presidential Confusion

I assume the President isn’t well and I hope he feels better soon. I say this because I can find no other ready excuse for his confusion on two fundamentally different concepts: Judicial Review and Judicial Activism.

The Free Dictionary (online) defines ‘Judicial Review’ as: review by a court of law of actions of a government official or entity or of some other legally appointed person or body or the review by an appellate court of the decision of a trial court.

The concept of judicial review well predates the founding of our country, and the founding fathers were fairly clear (or so it would seem) in outlining their views as to the role of the judiciary vis-à-vis the law. The basic tenets are defined in Article III of the Constitution (areas in bold by me):

Article III.

Section. 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another state--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Article IV establishes order of precedence:

Article. VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

As was explained in the Federalist Papers (written by a number of our founding fathers to convince the states to adopt the proposed Constitution, Alexander Hamilton argued that federal courts could declare laws unconstitutional. This would protect the citizens against both abuse of power by Congress, and also prevent tyranny of the majority – the central political-philosophical tenet behind the Bill of Rights). In the Federalist Papers Hamilton wrote (all from Federalist 78):

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

…that the prior act of a superior, ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former.

If then the courts of justice are to be considered as the bulwarks of a limited Constitution, against legislative encroachments,…

The case for Judicial Review was established in Court by Chief Justice Marshall, who served as Chief Justice from 1801 to 1835. Chief Justice Marshall stated:

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.

All of this is in contrast to Judicial Activism, which the same ‘Free Dictionary’ defines as

Judicial Activism: an interpretation of the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court)

Chief Justice Marshal also provided clarity in this regard:

To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers; — is to repeat what has been already said more at large, and is all that can be necessary.

Now, the President is a Constitutional Scholar, so he is well aware of all this. Thus it is a bit mystifying that the President, just yesterday, cautioned the Supreme Court against judicial activism in upcoming decisions, and according to some observers went so far as to subtly threaten the Court. The difference between review and activism is clear. The separation of powers is clear. The President has sworn to uphold the Constitution.

Of course, the President knows all this. He is, after all, a Constitutional scholar. And so, I assume he must not be feeling well, else he would never have said something so completely wrong on so many levels.

For the record, according to Wikipedia, as of 2010 the Supreme Court has held as un-Constitutional some 163 acts of Congress.