Constitution actually says otherwise. The United Kingdom has devloped and retained freedom without judicial review.
Consider what the effects of such an amendment would be. This is a civilized nation; there is no reason to suppose that the citizens of some benighted town would suddenly become fascists and return to a regime of racial segregation. The Court would strike down any such laws and Congress would support the Court. What might be in danger would be the Court’s cultural drive to the left. There is no reason to suppose that representatives and senators would be skilled interpreters of the Constitution, but then the Court isn’t either…or rather chooses not to be. If constitutional jurisprudence remained a mess, at least it would be a mess arrived at democratically. There is no reason to regard this proposal as at odds with constitutionalism. When Congress proposed the original Constitution and the various amendments, it did so by laying them before the states for democratic decision. The Supreme Court changes the Constitution without any such ratifying process. The clearest equivalent would be laying judicial changes of the Constitution before Congress for ratification or rejection.
It will be said that this suggestion is “extremist.” I think not. It is part of a long tradition of seeking ways to tame judicial power so that it achieves democratic legitimacy. Robert LaFollette, if I recall correctly, proposed amending the Constitution to allow the Senate by a two-thirds vote to override Supreme Court decisions. Learned Hand, considered to be America’s premier appellate judge, was nearly apoplectic at the Supreme Court of his day. In 1914, Hand wrote to Felix Frankfurter denouncing “the fatuous floundering of the Supreme Court which goes by the name of Constitutional Law. Am I perverted that I alone of those who touch it have acquired such a contempt for the subject? I can scarcely think of a matter to which the human mind has been applied with less credit to itself than that.” He referred to the Court and its constitutional rulings as “that solemn farce.” 45
The Court legislated, as it does today, through the due process clauses of the Fifth and Fourteenth Amendments. (The potential for judicial legislation through the equal protection clause had not yet been discovered.) Hand ultimately came to the conclusion that these clauses should be repealed, certainly an “extreme” position, then as now. Gerald Gunther, from whose biography of Hand I have been quoting, summarized Hand’s view on judicial power in a democracy:
At the root of the evil, Hand insisted, was “the fatuity of the system which grants such powers to men it insists shall be independent of popular control!” If the courts were to retain their legislative power under the guise of interpreting the due-process clauses, they must either “abdicate their exercise except on rare visitations,” or “submit to a popular control which they rightly enough resent.” Judicial self-restraint and popular control of the judiciary were the only two possibilities consistent with democracy: “One or the other is a condition of democracy; it is a condition of anything but ceremonial dancing before the ark of the covenant” 46
Hand was speaking of a Court that was then activist in conservative causes. There is no reason to suppose that he would have been kinder to later Courts whose “fatuous floundering” was in the service of modern liberal causes. Perhaps the real lesson to bederived from both the conservative and modern liberal eras is that judges cannot be trusted with a written constitution and an unlimited and uncheckable power of judicial review Most men and women, given final power, will prove unable to subordinate their personal sympathies and passions to the legitimate range of meanings that a dispassionate mind can find in the Constitution.
The Court is obviously not responsible for all that has gone wrong in our culture, but
Consider what the effects of such an amendment would be. This is a civilized nation; there is no reason to suppose that the citizens of some benighted town would suddenly become fascists and return to a regime of racial segregation. The Court would strike down any such laws and Congress would support the Court. What might be in danger would be the Court’s cultural drive to the left. There is no reason to suppose that representatives and senators would be skilled interpreters of the Constitution, but then the Court isn’t either…or rather chooses not to be. If constitutional jurisprudence remained a mess, at least it would be a mess arrived at democratically. There is no reason to regard this proposal as at odds with constitutionalism. When Congress proposed the original Constitution and the various amendments, it did so by laying them before the states for democratic decision. The Supreme Court changes the Constitution without any such ratifying process. The clearest equivalent would be laying judicial changes of the Constitution before Congress for ratification or rejection.
It will be said that this suggestion is “extremist.” I think not. It is part of a long tradition of seeking ways to tame judicial power so that it achieves democratic legitimacy. Robert LaFollette, if I recall correctly, proposed amending the Constitution to allow the Senate by a two-thirds vote to override Supreme Court decisions. Learned Hand, considered to be America’s premier appellate judge, was nearly apoplectic at the Supreme Court of his day. In 1914, Hand wrote to Felix Frankfurter denouncing “the fatuous floundering of the Supreme Court which goes by the name of Constitutional Law. Am I perverted that I alone of those who touch it have acquired such a contempt for the subject? I can scarcely think of a matter to which the human mind has been applied with less credit to itself than that.” He referred to the Court and its constitutional rulings as “that solemn farce.” 45
The Court legislated, as it does today, through the due process clauses of the Fifth and Fourteenth Amendments. (The potential for judicial legislation through the equal protection clause had not yet been discovered.) Hand ultimately came to the conclusion that these clauses should be repealed, certainly an “extreme” position, then as now. Gerald Gunther, from whose biography of Hand I have been quoting, summarized Hand’s view on judicial power in a democracy:
At the root of the evil, Hand insisted, was “the fatuity of the system which grants such powers to men it insists shall be independent of popular control!” If the courts were to retain their legislative power under the guise of interpreting the due-process clauses, they must either “abdicate their exercise except on rare visitations,” or “submit to a popular control which they rightly enough resent.” Judicial self-restraint and popular control of the judiciary were the only two possibilities consistent with democracy: “One or the other is a condition of democracy; it is a condition of anything but ceremonial dancing before the ark of the covenant” 46
Hand was speaking of a Court that was then activist in conservative causes. There is no reason to suppose that he would have been kinder to later Courts whose “fatuous floundering” was in the service of modern liberal causes. Perhaps the real lesson to bederived from both the conservative and modern liberal eras is that judges cannot be trusted with a written constitution and an unlimited and uncheckable power of judicial review Most men and women, given final power, will prove unable to subordinate their personal sympathies and passions to the legitimate range of meanings that a dispassionate mind can find in the Constitution.
The Court is obviously not responsible for all that has gone wrong in our culture, but
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