Inviting judges to consider the consequences of their decisions or recent practice as guides to interpretation threatens to bury originalism.
For the first post in this series, see here.
This post discusses the textual arguments supporting judicial review. In this area, there are two issues. The first is whether the Constitution takes priority over ordinary legislative action; the second is whether the courts get to determine whether legislation violated the Constitution.
It appears that virtually everyone agrees on the first issue that the Constitution takes priority over ordinary legislation. This appears to follow from the meaning of the Constitution (and perhaps as well from other provisions in the Supremacy Clause). It is the second issue where there is dispute: whether the courts get to determine whether legislation violated the Constitution or whether the courts should defer to the legislature’s determination that the legislation conformed to the Constitution. Put differently, where in the Constitution does it say the Courts get to say what the Constitution meant rather than the legislature?
Let’s start with the most important, but not the only relevant provision: the Supremacy Clause. That Clause provides that:
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 first thing to see about the Supremacy Clause is that, despite claims to the contrary, it actually contains a relatively express judicial review clause. The language “and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding” clearly indicates that state judges are supposed to exercise judicial review as to whether state laws conform to the U.S. Constitution. After all, why single out judges for this obligation rather than state legislatures?
Second, the Constitution also makes clear that federal judges are supposed to exercise judicial review as to state laws. Article III of the Constitution provides for federal jurisdiction for all cases “arising under this Constitution,” clearly indicating that judges are supposed to engage in judicial review as to state laws. (Otherwise, why provide for federal jurisdiction for such cases?)
Thus, the Constitution clearly contemplates judicial review. It tells us that federal and state judges are supposed to engage in it as to state laws. They are not supposed to defer to the decisions of state legislators as to whether the state law conforms to the Constitution.
If the Constitution clearly requires judicial review as to state laws, then what about federal laws? There are also strong indications of judicial review here. The Constitution tells us expressly in the Supremacy Clause that the Constitution is “law.” And therefore if judicial power is the authority to say what the law is – which it certainly is – then the Supremacy Clause and the judicial power tell us that the Court is supposed to interpret the Constitution. And the supremacy of the Constitution over other federal law tell us that the Constitution is to take priority. Hence, there is judicial review as to federal statutes.
This conclusion is reinforced by the role of the courts as to the judicial review of state laws. If courts have the role of reviewing state laws as to constitutionality, then one would need some special explanation for concluding that they should not have that role as to federal law. No such explanation is forthcoming. Critics of judicial review as to federal laws argue that the Congress is a coequal branch and therefore it should have the power to decide on constitutional questions. But this begs the question. Congress may be a coequal branch, but that does not mean it displaces the power of judges to interpret the Constitution when that is what judicial power encompasses. The state legislatures are coequal branches, yet the Constitution clearly requires the state judges to exercise judicial review over state legislatures. (Moreover, in the many precursors to judicial review at the state level, the state legislatures were coequal branches, but that did not stop the state judges from exercising judicial review.)
Finally, one might wonder why the Constitution expressly indicates in the Supremacy Clause of judicial review of state laws by state judges, but not of federal laws. One might believe that this suggests no judicial review of federal laws, but there is a strong alternative explanation for the Supremacy Clause’s reference. State judges owe their offices and allegiance to their state constitutions and therefore the Framers might have believed it was necessary to expressly reinforce that state judges should apply the federal constitution. By contrast, federal judges owe their offices and allegiance to the federal Constitution and therefore there was no need to add a special provision reinforcing it.