Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

How High The Court?

Summer 1996

William J. Quirk and R. Randall Bridwell
Transaction Publishers, 1995. xv + 143 pgs.

Everyone talks about the Supreme Court, but no one ever does anything about it. Many Supreme Court decisions have aroused fierce controversy within the past fifty years: Brown v. Board of Education and Roe v. Wade are the most obvious examples. Often, these decisions lack majority support: but they are the "law of the land," after all.

For many conservatives, the problem with the Supreme Court lies in its loose construction of the Constitution. Instead of interpreting the Constitution as originally intended by its Framers, the Warren Court and its successors, it is alleged, discover their own political agendas ready-made there. A return to "strict construction" offers the only hope for a restoration of sound government.

Judicial Dictatorship is a radical book in the best sense: it compels readers to rethink their most basic assumptions about the Court. For Quirk and Bridwell, the problem lies not with the way the Court has interpreted the Constitution: rather, they question the entire institution of judicial review.1 Contrary to nearly all other scholars, they hold that the Supreme Court should not be the ultimate arbiter of the Constitution.

In their view, America is a democracy, and judicial supremacy cannot be consistently combined with popular rule. "The judiciary, led by the Supreme Court, is in the vanguard of the elite imposing nonmajority values and policies on the country. They are, as Jefferson said, the 'miners and sappers of democracy.

"The traditional view was that the separation of powers made the legislature and executive responsible for change and the Court the guardian of continuity and stability. The Court, however, over the past thirty years, has made itself the major agent for change--one that operates without democratic check to accomplish ends that could not be achieved by democratic process" (p. xv).

The reply to this is obvious. Defenders of the Court will say that America is not an unlimited democracy, but instead a democracy restricted by a written constitution. The function of the courts, culminating in the Supreme Court, is to interpret and apply the law. Since the Constitution is "the supreme law of the land," its provisions take precedence over acts of Congress. If there is a conflict between the two, it is the duty of the Court to declare the Congressional enactment unconstitutional. All the more so, then, does the Court have similar powers over state legislatures.

Quirk and Bridwell do not deny that we are governed by a written constitution (although they sometimes suggest that, without frequent revisions, we shouldnt be). They instead challenge the inference from written constitution to judicial review. They rightly note that they are not the only scholars to challenge judicial review. "Historically, the members of the resistance are an impressive group" (p. xii; I would add to the books they list on p. xiii the important but neglected work of L. Brent Bozell, The Warren Revolution). Nevertheless, one can only repeat that in contemporary scholarship, their position is one of stunning audacity.

Before confronting their arguments, a preliminary issue requires consideration. Why not try strict construction? It seems a much less extreme remedy for judicial usurpation than the radical surgery our authors propose. Why not, with most contemporary conservatives, adopt it?

Quirk and Bridwell interpose an objection. "As John C. Calhoun pointed out, 'strict construction is a 'phantom, a thing 'good in the abstract, but in practice not worth a farthing. Everybody is for strict construction 'but in fact, it will ever be found to be the construction of the permanent minority against the permanent majority, and of course of itself valueless" (p. 34).

Calhouns argument strikes me as not conclusive. His reasoning, if I have understood him, is this: (1) Everyone claims to be a strict constructionist; (2) Therefore, the concept "strict construction" is useless. It is not at once apparent how (2) is supposed to follow from (1). Let us look at an analogous argument: (1) Practically everyone claims to be a good person; (2) Therefore, the concept "good" is useless. I hardly think this is a sound argument for the view that goodness has no objective criteria.

But of course, even if strict construction is a usable concept (and I have certainly not shown that it is), this does not refute the authors case against judicial supremacy. This case has two main components: first, judicial review has been challenged by American statesmen of unquestioned standing, in particular Thomas Jefferson; and second, judicial review is not needed to protect the rights of minorities. Both arguments, but especially the first, seem to me strong ones.

The authors show conclusively, through a detailed study of his correspondence, that Jefferson rejected judicial supremacy. Thus, in a letter to William Jarvis in 1820, Jefferson wrote: "It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. It is one which would place us under the despotism of an oligarchy" (p. 3). On an earlier occasion, he wrote in 1810 that judicial review allows for a Supreme Court "which from the citadel of the law can turn its guns on those they were meant to defend" (p. 3).

Of course, Jeffersons holding this opinion does not make it true. But this is not the authors point. Rather, their contention is that if so eminent a statesman as Jefferson rejected judicial review, it cannot be taken as an entrenched practice not subject to challenge today.

And Jefferson was not the only eminent figure to reject judicial review. The authors note that on one occasion John Marshall himself was willing to abandon judicial supremacy. "While the trial [of Justice Chase] was going on, John Marshall, who thought he might be next, offered the surprising compromise that Congress be authorized to override the Court rather than remove the judges" (p. 55). (It has, however, sometimes been contended that Marshall, in the letter to Chase which they quote, spoke ironically.)

But, it will be said, even if there is historical backing for the authors case, do we not need judicial review as a way to protect the rights of minorities? Suppose that Congress abolished the Bill of Rights, or enacted a law that all redheads be drowned at birth. Should the Supreme Court stand idly by?

Quirk and Bridwell do not deny that a majority can act badly. But why rest the rights of minorities in the hands of a tribunal of Platonic Guardians, assumed to be superior in wisdom to the people? If the majority of the people cannot be trusted to act in a manner that respects rights, why assume that the Supreme Court can or will?

To Quirk and Bridwell, the Constitution is a voluntary self-limitation of the sovereign people. It is not a set of limits to be imposed on the people, or their representatives in Congress, by a body that presumes to stand apart from the popular will.

This is indeed an intriguing and forceful argument. Yet it seems to me to have neglected an alternative. What if sovereignty resides neither in a body of Platonic Guardians, nor in the people taken collectively, but rather in individuals considered separately? If the latter position (which I think the correct one) is adopted, does this allow a larger role for independent courts than our authors are willing to countenance?

Quirk and Bridwell have, in sum, written an insightful and provocative book that every student of American constitutional law needs to study carefully. When one contemplates the manifold unconstitutional acts of the Supreme Court, there is a strong temptation to say, with Voltaire, "Ecrasez linfâme."


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