Judicial review

Judicial review is the principle that courts must apply the Constitution when a statute conflicts with it. Its force in these essays comes from the hierarchy of authority it describes: the people establish a fundamental law and delegate limited powers to their representatives; courts, when deciding cases, must honor that law over an inconsistent act of the legislature. Judicial review is thus presented not as judicial rule over the legislature, but as a means of keeping delegated power within the boundaries set by the people.

Constitutional Limits and the Courts

A limited Constitution, as the argument defines it, places specified exceptions on legislative authority, including prohibitions on bills of attainder and ex post facto laws. Those limits would be ineffective in practice if no institution could determine whether a statute violated them. Courts provide that means of enforcement: their duty is to declare void legislative acts contrary to the Constitution’s manifest tenor. Without such a judgment, constitutional reservations of rights and powers would amount to nothing.

The claim that courts may refuse effect to statutes has prompted the objection that an institution able to invalidate another’s acts must be superior to it. The essays reject that inference by distinguishing the judiciary’s authority to interpret law from the source of the law’s authority. A legislative act contrary to the commission under which legislators act is void, just as an agent cannot validly exercise powers that the principal withheld or forbade. The Constitution is the people’s commission to their representatives, not a grant of unlimited authority.

The Constitution as Fundamental Law

The reasoning turns on the Constitution’s character as fundamental law. Courts already interpret statutes, and they may face two statutes that conflict without either containing a provision repealing the other. Where possible, they reconcile the laws; where reconciliation cannot be achieved, they determine which must govern. In that familiar task, the courts treat the later enactment as controlling between conflicting acts of equal authority. That rule is a principle of construction, not a command imposed by a statute.

A conflict between a statute and the Constitution is different because the two instruments do not possess equal authority. The Constitution is the prior act of a superior power—the people—while a statute is the subsequent act of a subordinate, delegated authority. The appropriate rule therefore reverses the one used for conflicting statutes: when a statute contravenes the Constitution, the courts adhere to the Constitution and disregard the statute. The choice is between the people’s intention, expressed in the fundamental law, and the intention of their agents, expressed in ordinary legislation.

This account does not make the judicial branch superior to the legislative branch. It places the people above both. Judges are to regulate their decisions by fundamental laws rather than laws that are not fundamental, and their authority in doing so follows from the hierarchy between the Constitution and statutes. If judges were to substitute personal will for legal judgment, that would be a failure in the exercise of judicial office, not the principle the argument defends.

Federal Powers and Constitutional Boundaries

The discussion of judicial review sits alongside a defense of the proposed federal government’s necessary and proper and supremacy clauses. The national legislature is authorized to make laws necessary and proper for carrying its constitutionally vested powers into execution; the Constitution, federal laws made pursuant to it, and treaties made under federal authority are declared the supreme law of the land. The argument treats these clauses as declaratory of consequences that would follow from establishing a government with specified powers, not as permission to act without constitutional limits.

The phrase “pursuant to the Constitution” is decisive. A federal enactment that exceeds the powers granted to the national government is not made supreme merely by being labeled a law of the Union; it is an act of usurpation against the authorities left to the States. The same interpretive discipline applies when deciding whether a particular measure is constitutional: its validity depends on the nature and extent of the powers on which it rests. The national government must judge its powers in the first instance, but the people remain the final authority, able to take measures to redress a tyrannical use of delegated power.

The essays illustrate the distinction with state taxation. A federal legislature could not, merely by claiming interference with federal revenue, abolish a land tax imposed under state authority where the Constitution presupposes concurrent jurisdiction over that kind of tax. This example marks the boundary between legitimate federal action and an intrusion on retained state authority. Supremacy governs federal laws made pursuant to the Constitution; it does not transform measures outside federal jurisdiction into valid national law.

Judicial Independence and Public Security

Judicial review requires courts capable of resisting pressure from the branches whose acts they may have to assess. The judiciary is described as the weakest of the three departments: it cannot successfully attack either of the others and must be equipped to defend itself against their encroachments. So long as it remains distinct from the legislature and the executive, the courts cannot endanger the people’s general liberty, though individual oppression may occasionally arise from judicial decisions. The danger to liberty lies instead in joining judicial power to either of the other departments or making the courts dependent on them in substance.

Because the judiciary is naturally feeble and continually vulnerable to being overpowered, awed, or influenced, permanence in judicial office is presented as essential to its firmness and independence. The argument therefore connects tenure to the practical enforcement of constitutional limits: a court asked to resist legislative encroachment must possess enough security to perform that duty faithfully. Judicial independence becomes, in this account, a safeguard for public justice and public security, and a bulwark of the limited Constitution.

The larger argument about government design reinforces this point. Popular dependence is the primary control on government, but experience also requires auxiliary precautions. Each department must have constitutional means and personal motives to resist encroachments by the others; ambition is to counteract ambition. Judicial independence is one of these safeguards, not an exception to popular sovereignty. Its purpose is to ensure that the people’s fundamental law continues to govern when ordinary political power presses beyond its delegated bounds.