In response to the death of Supreme Court Justice Antonin Scalia, Will Ricciardella of Unbiased America took the opportunity to make an argument about the constitutionality of the process of judicial review. This is the process by which the Supreme Court reviews a case involving constitutionally questionable laws and, according to their ruling, either cement the validity of or entirely annul the law.

It is understandable why judicial review is controversial. In his piece, Will cites the infamous Dred Scott ruling in which a slave suing for his freedom had been ruled legally free by an inferior court. Not only did the Supreme Court’s ruling on this case reinstate his slavery (temporarily, since he was later freed by his owners), their decision had other sweeping effects. In addition to ruling that black people were not considered federal citizens (they could only be state citizens) and therefore had no constitutionally protected rights, such as the right to bring such suits to court, Justice Roger Taney also ruled that the federal government had no right to prohibit property (referring quite specifically to “slave property”) in federal territories. This entirely nullified the Missouri Compromise of 1820 that blocked slavery in the northern territories.

Using the power of judicial review, Justice Taney opened slavery up to all of the western territories and set the precedent that a constitutional amendment would be required to protect the rights of black citizens, regardless of whether or not they were free. Add to this the fact that Taney did all this despite his ruling that the salve, Dred Scott, could not be a citizen of the United States — meaning that, if true, the Supreme Court would not have even had jurisdiction in the case. In this ruling, we see a clear case of judicial activism, which critics like both Will and myself rightly refer to pejoratively as “legislating from the bench.”

The Dred Scott ruling is only one (though inarguably the worst) example of destructive judicial powers. With the potential for accepting unqualified cases, activist judges, and seemingly open-ended powers of the Supreme Court’s legislative powers, the dangers of judicial review are readily apparent.

Will makes another sound logical argument against judicial review when he asks, “why would the states and the people create a document expressly limiting the federal government, and then grant to it sole power to restrict itself?” In this instance as well, I entirely agree with Will; judicial review is not only dangerous, but also logically contradictory.

Unfortunately, none of this actually has anything to do with the original interpretation of the Constitution, which is the standard by which so-called “Originalists” purport to judge what is constitutionally valid. (For what it’s worth, although I no longer consider myself an Originalist or even a Constitutionalist, the original interpretation does seem to be the only rational standard to judge constitutional validity, to the degree that such an interpretation can be discerned.) The issue I take with Will’s article is when he writes in the very first paragraph that the Supreme Court justices “were never intended to have” their “Constitutional review powers.”

Despite largely agreeing with Will on his critique of judicial review, it does appear that he is wrong in his interpretation of original constitutional interpretation. Logical arguments are sound when regarding ideology, but they have no bearing on the intent or interpretation of the Framers and ratifiers of the Constitution. We’re referring to human beings who, whatever their intellectual merits, are perfectly capable of logical oversights. The fact that something is bad is even less of an argument regarding constitutional intent (is anybody going to argue that the Fugitive Slave Clause of the Constitution violated original constitutional intent?). In some cases, it’s even questionable as to whether or not those supporting the clause in question even accepted a uniform interpretation (in the case of the Coinage Clause, for example, it seems that many delegates approved it on the belief that the other delegates held their accepted interpretation, despite a wide diversity of views).

In the case of judicial review, it is true that Will’s arguments are echoing the words of many of the Framers and ratifiers. Virginia’s Patrick Henry is one prominent example who advocated what Will advocates. Henry was in favor of leaving the power for judicial review to the State Judiciary, arguing that “the Virginia judiciary [is] one of the best barriers against strides of power” and asking “if there be concurrent disputes between [the State and Federal Constitutions], which will prevail?”[1]

The key point, though, is that Henry was not questioning that the Constitution allows for judicial review by the Federal Supreme Court; he was accepting that interpretation as a reason to oppose ratification. He states that “by this system we lose our judiciary, and they cannot help us, we must sit down quietly, and be oppressed” (emphasis mine).[2] Henry is counted among the “nay” votes in the Virginia ratification debates.[3]

In Virginia, it is John Marshall who argues the benefits of judicial review, never correcting Henry’s interpretation of it. Other ratifying debates evince the same interpretation while supporting the power. “If the United States go beyond their powers, if they make a law which the Constitution does not authorize,” Oliver Elsworth argues during the Connecticut ratification debates, “the judicial power … will declare it to be void.”[4] He fallaciously viewed federal review as a check on the federal government, but his poor logic aside, his interpretation of the power is clear. The North Carolina debates show similar dialogues.

Outside of Virginia, the idea of judicial review was not only an accepted power, it was hardly controversial. The argument focused on the “independence” of judges that are appointed for life. For most delegates, it seems, the power to review and void federal laws was a given.

Patrick Henry and those who agreed with him, such as Maryland delegate John Mercer and fellow Virginian George Mason, did not contest the interpretation of judicial review as a constitutional power allocated to the federal court. They acknowledged and argued the logical points that Will makes today, and based on their distrust of this power (along with many other objections), they opposed the ratification of the new Constitution.

One may even make a distinction between “interpretation” and “intent.” The former must be deciphered through the voluminous records of the ratifying debates as well as other documents such as The Federalist and The Anti-Federalist Papers, all of which contain various interpretations in the arguments for and against ratification. But intent is generally found in the smaller group of men — the Framers — who drafted the Constitution.

There was some debate over the dangers of judicial review during the Philadelphia Convention, but not much. The power of negating laws was brought up on June 4, and the debate centered partly on whether this power should be handed to the judiciary or the executive. The precedent for judicial review had already been set by “some States” in which “the Judges had <actually> set aside laws as being agst. the Constitution,” and this was done “with general approbation,” according to Elbridge Gerry.[5] Gunning Bedford believed that this power should not exist at all because the “Representatives of the People were the best judges of what was for their interest” (which noticeably ignores any concern for actual constitutionality).[6]

The issue of vesting this power entirely in the executive was settled when Benjamin Franklin cited the abuses of power by the Prince of Orange in the Netherlands. The idea of giving this power to the executive was unanimously rejected, but the issue of empowering a branch to void a law was still on the table.

The important thing to note is that this debate revolved explicitly around where to vest the power to void laws, and it ended with the approval of two motions: the first was the resolution to establish a National Judiciary and the second was to add the words “to consist of one supreme tribunal, and of one or more inferior tribunals.” [7] Although the power of judicial review and the negation of federal law is not explicitly stated in the clause, it is clear from the debate that this was one of the intentions of this part of the Constitution according to the Framers.

As with a great many issues, I agree with Will on this matter from an ideological viewpoint. He supports state review of federal law, much in the Jeffersonian view encapsulated in the Kentucky-Virginia Resolutions of 1798. Putting aside my obvious anarchist dogma, I believe that this system would be preferable to the prevailing one.

But if Will and I are to be intellectually honest, then our ideological views can have no bearing on the interpretation of the Constitution according to the Framers and ratifiers. The records of the debate appear to clearly acknowledge that the power to review and void federal laws was, for better or worse, vested in the Supreme Court, and the people who spoke out against it were not questioning the interpretation but rather accepting it as a reason not to ratify. Will’s arguments against this power are entirely sound, but he appears to have molded his interpretation regarding the constitutionality of judicial review to fit his preferred narrative instead of the facts.

[1] Jonathan Elliot, The Debates in the Several State Conventions On the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787: Together with the Journal of the Federal Convention, Luther Martin’s Lett, 2nd ed., The Cornell University Library Digital Collections (Ithaca, NY: Cornell University Library, 2009), V.3, 539.

[2] Ibid.

[3] Ibid, 655.

[4] Ibid, V.2, 196.

[5] Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed. (New Haven: Yale University Press, 1986, 1966), 97.

[6] Ibid, 101.

[7] Ibid, 104-105.