Questions for the Critics of Judicial Review

Abstract

Judicial review remains one of the American Constitution's most controversial features. It has made American judges some of the most powerful in the world, with a potent role in shaping the everyday lives of Americans. Perhaps for this reason, scholars and judges continue to question its origins and legitimacy, with recent articles appearing in the Harvard Law Review and the Columbia Law Review,' and with Justices Stephen Breyer and David Souter challenging the constitutionality of judicial review in federalism cases. In earlier articles, we laid out the origins of judicial review. Rather than reiterating the affirmative case for judicial review, here we respond directly to the arguments of the leading recent critic, Professor Larry Kramer. We have no quarrel with Professor Kramer's uncontroversial (and indeed, so far as we know, uncontroverted) statement that the Founders envisioned that the Constitution would be enforced through popular means such as voting, petitioning, and mobbing. We likewise agree with his assertion that the Constitution was never meant to enshrine a Cooper v. Aaron type of judicial supremacy. Yet, we profoundly disagree with Professor Kramer's controversial claims that the Constitution, as originally understood, never authorized judicial review, and that the Founders regarded popular constitutional methods as the exclusive means of safeguarding the Constitution. First, Professor Kramer, like Professors Jesse Choper and Herbert Wechsler before him, ignores the constitutional text and structure. Fairly read, the Constitution's text and structure establishes judicial review in a number of ways. Second, the Constitution's text, as well as constitutional practice at the time of the Founding, contradicts Professor Kramer's theory that the Founders meant the Constitution to be a political-legal document ― a document to be enforced exclusively through popular means. Indeed, Professor Kramer's admission that the Constitution is judicially enforceable against the states undermines his own theory. Third, we believe that Professor Kramer has made methodological errors in his use of the historical materials. In particular, he never squares his claims with the secondary historical literature that runs counter to his thesis. Moreover, he implicitly adopts the stance that, in order for something to be historically established, there must be a solely quantitative level of historical proof; in his argument, the quality of the evidence is apparently of no moment. Fourth, the historical evidence, both quantitatively and qualitatively, refutes Professor Kramer's conclusions. The Founders acknowledged that the Constitution authorized judicial review dozens of times, and no Founder appears ever to have argued, during the ratification fight, that the Constitution either barred or did not permit judicial review. Ironically, though Professor Kramer belittles the evidence in favor of the constitutionality of judicial review, there is virtually no evidence supporting his opinion that the Constitution's political safeguards left no room for judicial review.