A Preview/Synopsis of Rights Reign Supreme
A Summary of the New Book
James M. Masnov’s Rights Reign Supreme: An Intellectual History of Judicial Review and the Supreme Court, has been published by McFarland & Company. Below is a preview and summary of the book.
Judicial review, the power of the United States Supreme Court to nullify unconstitutional state and federal legislation, has been attacked and revered for centuries by scholars and statesmen alike. It is a remarkable power that checks the growth of, and counters overreach by, the other departments of government: the legislative and executive branches. The legitimacy of judicial review has been questioned by many, and the politicized circumstances which cemented it in American jurisprudence during the Marbury v. Madison case in 1803 further complicates debate over its validity. The diverse views among the American framers regarding the power of the judiciary contributes as well to arguments on both sides of the matter. The lack of an express delegation of judicial review in Article III of the United States Constitution also appears to give credence to those who maintain that judicial review is illegitimate. The issue has only become more relevant over the past century as the Supreme Court has grown to occupy a more central role in the lives of the American people. The result has been for politicians of both major political parties (as well as scholars) to decry the antidemocratic nature of the judicial power.
The politicization of the Supreme Court has moved scholars of every intellectual stripe and officials of every political persuasion to denounce it as antithetical to American democracy. Conservatives in the middle of the twentieth century criticized its role in revolutionizing civil rights. This was only after, however, progressives earlier in the century had criticized the judiciary for not bending more quickly to reforms they championed, including labor laws and the political power of unions. Conservatives in the late twentieth century condemned the Court for not practicing deference to the legislative power, and in recent years political progressives have re-asserted threats that echo that of Franklin D. Roosevelt in advocating the packing of the Supreme Court to make it more representative of the people—or at least the ruling party.
The Supreme Court became a more overtly political body as it took a more active role in the twentieth and twenty-first centuries, through its power of judicial review. The image of the court growing more political was a natural byproduct of its growing stature in peoples’ lives. Considering the issues decided by the Court regarding free expression, segregation, gun rights, and same sex marriage, just to name a few, it is understandable that the judiciary has come to be seen in more political terms as it possesses an increasing role in shaping American culture. That said, opportunistic politicians across the political spectrum (and from both major parties) have sought to attack the Court’s role. Additionally, media commentators have criticized the judiciary increasingly in recent decades, particularly when a ruling proved unpopular either generally or among a certain political faction. As a result, many—including members of the academic community—have contributed to the cacophony by similarly claiming the Court should become more representative of the democratic ideals of the nation. It is an understandable position. After all, if the Court is going to be a political body, it should be a democratic one—it could be argued.
The central aim of the book is to assert that the American judiciary is intended to be an antidemocratic check upon the other branches and upon the people themselves. Its power of judicial review, I argue, carries an abundance of legal precedent—prior to Marbury and even prior to the creation of the U.S. Constitution—and is essential to the survival of the constitutional republic. Furthermore, the power of judicial review does more than inhibit the power of the other branches, important as that is. I assert, as a central facet of this thesis, that the Court’s power of judicial review is itself an instrument of natural rights theory. It assumes essential natural law tenets of the American founding, referenced—for example—in the Ninth Amendment, that the people of the United States possess unenumerated rights. Such unenumerated rights preceded the existence of the United States government itself. The ratification debates in the 1780s gave voice to such natural law notions by both supporters and critics of the proposed Constitution, prior to ratification and prior to the adding of a Bill of Rights. Thus the Supreme Court, through its power of judicial review, acts as a steward of the Constitution by protecting the rights of the people against the unconstitutional encroachments of the other branches of government.
To support my thesis I analyze the arguments made by those who created the U.S. Constitution and those who challenged its ratification. Doing so bolsters my contention that judicial review was not a power taken by Chief Justice John Marshall in 1803, but a power already inherent to the general ethos of American legal thought in the 1780s. Discussions regarding cases of judicial review among the individual states prior to the Constitution’s ratification and federal instances of judicial review following ratification and preceding Marbury also demonstrate the practice and legitimacy of judicial review. I also lay out the anecdotal instances of judicial review and judicial independence in Europe in the seventeenth and eighteenth centuries, specifically in England and France. Following making a case for judicial review’s legitimacy, I demonstrate its connection to the protection of both natural and civil rights. For this to succeed, some discussion of natural rights theory is necessary. To underscore the power of judicial review as an instrument of natural rights theory, I also discuss some of the most egregious Supreme Court decisions in United States history. It becomes evident that many of these terrible rulings were due to their betrayal of fundamental rights values.
I conclude the book with a discussion about the practical politics of the Court. There is an inherent paradoxical tension within the Supreme Court. Its power of judicial review has been (largely) accepted by scholars, the legal community, and the people. Nevertheless, if it becomes too politicized or moves too far from the sentiments of the people, it loses legitimacy. This is a peculiar but vital aspect of the Court: it has final say (not including the amendment process) but it also has no police powers. The Supreme Court carries with it no military force, nor should it. It must then retain its legitimacy through its power of legal reasoning and fidelity to notions of natural rights and civil rights. Because its influence derives directly from its legitimacy, it must be jealous of that legitimacy and avoid further politicizing itself unnecessarily. This creates a precarious balancing act for the Court. It must bring its intellectual force to bear on matters that no other institution can, yet it must avoid treading into matters which would be better resolved through legislation and other means. Judicial review is not a prerogative to be employed copiously or without concern for its ramifications. It is an awesome power that should be used to limit governmental authority which has not been delegated by the people through the Constitution, especially when natural and civil rights are in jeopardy. History reveals this to be the proper and essential role of the Court.
By asserting that judicial review is both legally sound and constitutionally legitimate through an analysis of the relevant historical discourses, it is then possible to contend why the power of the judiciary to nullify unconstitutional laws is essential in the American republic. This requires an explanation of natural rights theory, specifically in its American form. It also requires an explanation of what makes such a theory legally and ethically valid. The thesis is thus simultaneously radical and moderate. It calls back to a tradition of rights theory embedded in American and European law and it also asserts that the revolutionary (and uniquely American) practice of judicial review is essential precisely because it is—in its proper form—an instrument of natural rights theory.
[James M. Masnov is a writer, historian, and lecturer. His book, Rights Reign Supreme: An Intellectual History of Judicial Review and the Supreme Court, published by McFarland Books, is available here. His first book, History Killers and Other Essays by an Intellectual Historian, is available here.]