Government by Judiciary

19. The Legitimacy of Judicial Review

Judiciary_351-400.indd 19 5/7/11 1:13 PM 19 The Legitimacy ofJudicial Review LE most fundamental question ofall, as Thomas Grey rightly stated, is "the legitimacy of judicial review itself,"1 a question that goes beyond the scope of the power to its very existence, however limited. After remarking, "Whether this enormous power can fairly be deduced from the language of the Constitution, and whether the framers of that instrument intended to confer it on the Justices, has been the subject of vast learned controversy ... unlikely ever to be resolved,"Joseph Bishop reassuringly stated, "No matter; the power exists."2 It is true that the power has long been exercised, but whether it "exists"-has constitutional warrant-is something else again. Edmond Cahn, however, opined that "it is too late to reopen the question ofwhether the Court ought to determine constitutional issues."3 On the contrary, it is never too late to challenge the usurpation of power; one gains no title by prescription against the government,4 still less against the sovereign people. Power reserved to the people by the Tenth Amendment cannot be taken over r. "Do We Have an Unwritten Constitution?," 27 Stan. L. Rev. 703 (1975). 2. "The Warren Court Is Not Likely to Be Overruled," The New York Times Magazine, September 7, 1969, in Levy, Warren 93-94. See also E. V. Rostow, "The Democratic Character ofJudicial Review," 66 Harv. L. Rev. 193, 196 (1952). But see infra Chapter 2r at note 44· 3· Edmond Cahn, "Brief for the Supreme Court," The N ew York Times M agazine, October 7, 1956, in Levy, Warren 28, 29; cf. Robert G. McCloskey, The A merican Supreme Court 17-18 (r96o). But see infra Chapter 23 at note 2. 4· United States v. r,629.6 Acres of Land, County of Sussex, Del., 503 F.2d 764, 767 (3d Cir. 1974); United States v. Oglesby, 163 F. Supp. 203, 204 (WD. Ark. 1958); Blask v. Sow!, 309 F. Supp. 909, 914 (WD. Wis. 1967). Judiciary_351-400.indd 20 5/7/11 1:13 PM GOVERNMENT BY JUDICIARY by "squatter sovereignty." "It will not be denied," Chief]ustice Marshall stated, "that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this."5 In Erie Ry. Co. v. Tompkins the Court, per Justice Brandeis, branded its own course of conduct stretching over one hundred years as "unconstitutional,"6 in a situation not nearly as important as the "enormous power" to impose the judicial will upon the nation. Usurpation-the exercise ofpower not granted-is not legitimated by repetition.7 The people, as John Adams inscribed in the Massachusetts Constitution of 1780, are ever entitled to demand of their magistrates an "exact and constant observance" of the principles of the Constitution,8 above all, to exercise no powers not granted. We may not, therefore, shut our eyes to the issue oflegitimacy. In the course ofa penetrating summary ofthe issues posed by judicial review, Leonard Levy states: "The charges of usurpation most certainly cannot be proved; it is without merit. The difficulty is that the legitimacy of judicial review in terms of the original intent cannot be proved either."9 This attempt at even-handed analysis overlooks the fact that under a Constitution which delegates and limits power, the burden is on a claimant to point to the source of his power-failing which, it is a usurpation.9a After dwelling on the materials which led him to conclude that the framers left a "very incomplete and extraordinarily ambiguous record,"10 Levy comments on Charles Black's argument that judicial re5 · M'Culloch v. Maryland, I7 U.S. (4 VVheat.) 316, 40I (I8I9). Hamilton stated that judicial "usurpations on the authority of the legislature" would be impeachable. Supra Chapter I5 at note 50. 6. 304 U .S. 64, 77- 78 (I938): referring to Swift v. Tyson, 40 U.S. (I6 Pet.) I (I842), the Court held, "the unconstitutionality of the course pursued [by the courts] has now been made clear, and compels us" to "abandon" the "doctrine so widely applied throughout nearly a century." For Justice Brandeis' quotation from Justice Holmes, see supra Chapter I5 note 56. 7· Powell v. McCormack, 395 U.S. 486, 546- 547 (I969): "That an unconstitutional action has been taken before surely does not render the same action any less unconstitutional at a later date." See also Ogden v. Saunders, 2 5 U.S. (12 VVheat.) 2I3, 290...