Philosophy

Guerrero

of

Law|Flores|Fonacier|Garcia|

XIX. THE ABSOLUTE REIGN OF

LAW
XIX.1. The Genesis of a Higher Law
The American Practice of Judicial Review
-The most celebrated legal institution of the
Western world
-Referred to as the American Doctrine
-Americas greatest single contribution to the
art of government
-Enabled America to achieve an absolute reign
of law

The Different Views on Judicial Review

-Laymen view it as the veto power of Federal
Judges over legislative acts
-Federal Judges view it as the application of the
higher law of the constitution over the
inferior laws of the legislative or state
-The difference between the two is that veto
power is a political device while judicial review
is a legal device

Veto Power and Judicial Review

Veto Power
Exercised with
consideration of
social and economic
policies
Operates as censors
annulling legislation in
advance
Declares legislative
acts void

Judicial Review
Exercised with
consideration of
artificial canons of
law
Acts as a
subsequent
censorship to
legislation
Simply refuses to
apply
unconstitutional
statutes

Origins of the Features of Judicial Review

-Common Laws system of judicial precedents

-Connected with the emergence of the written

constitution

The Ingenuity of the Written Constitution

-Reduces the organic political structure to a
fixed form
- Limits the possibilities of legislation
-Distributes
functions

governmental

powers

and

-Establishes spheres of activity entirely beyond

the reach of the government (e.g.
Bill of
rights)
-Introduces the concept of a hierarchy of
statutes" in the theory of legal sources

The Paradoxes of the Inception of Judicial

Review
Critics
There is no text in
the Federal
Constitution which
expressly empowers
the courts to
determine the
constitutionality of
legislative acts.

Supporters
It is implicit in the
federal scheme of
government
established by the
Founding Fathers.

The Constitution itself

violated the then
Articles of
Confederations
provisions which
prohibited any
modification without
unanimous consent.

The Articles of
Confederation was
disastrous and
unworkable to begin
with, disabling
nationwide policies by
emphasizing
sovereignty of each
individual state.
If each department is
left to determine the
extent of its own
powers, it would
inevitably contradict
each other. There
must be one organ
that is supreme. The
judiciary is simply the
final arbiter.

If the judiciary
determines the nature
and extent of
legislative and
executive,
(consequence of
which is determining
its own powers) it
becomes
omnipotent and
renders illogical the

concept of co-equal
departments.

>Committee of the Privy Council disallowed

acts of colonial assemblies which conflicted
with the provision of common law.

History and Growth of Judicial Review

>there was a hierarchy of governmental

authorities such as superior and inferior
courts, or local and ultimate sovereign
legislative bodies, wherein the ordinances of
inferior bodies were disallowed when they
conflict those of the higher authorities.

-The Influence of the Cult of Common Law

>18th century French political theory
venerated common law and new concepts of
liberty due to constitutional struggles
experienced during the 16th and 17th
centuries.
>the colonists glorified common law against
mere enactments of the British Parliament.
>common law was regarded as a general
law of the land, overriding inconsistent local
customs and therefore operating as a
superior law.
>Judges were the oracles of law, tasked
with the interpretation the general law of the
land
>even the British Parliament operated as
both a judiciary and a legislature. Thus,
entrusting judges in the modern era of
written constitutions seemed only a short
and natural step rather than a momentous
one.
-Lord Coke as the Godfather of Judicial Review
>stated that in many cases, the common
law will control acts of Parliament, and
sometimes adjudge them to be utterly void,
a heresy back then.
>but American constitutionalists would say
that the American Revolution was practically
fought to realize this doctrine.
-Magna Carta
>if there was a law that the king dared not
infringe, then there must be a law which is
above all men; a fundamental law.
>Englishmen regarded this fundamental law
as the embodiment of natural law which
could be found in the Magna Carta, a charter
of the untouchable liberties.
>the idea of a written constitution was
naturally derived from this special charter.

-Judicial Review in the Federal Government

>Federal Union cancelled legislation of
subordinate units when inconsistent with
Federal Laws.

The Idea of a Representative Government

-The ultimate triumph of Judicial Supremacy
-A purely democratic form of government has
no need for Judicial Review since the whole
sovereign people could not set limits to its own
authority
-In a representative form of government, it is
the people that are conceived to be the source
of authority and as such, there is a need to
prevent the legislature from exceeding its
delegated authority
-Although this does not necessarily mean that
the judiciary is tasked with interpreting the will
of the people, or whether judicial review of the
judiciary should be binding upon the other
departments. This idea finally triumphed due to
one man, John Marshall.

XIX.2. John Marshall and the Triumph

of Judicial Review
Judicial Review
-Doctrine under which legislative and executive
actions are subject to review (and possible
invalidation)
-Power of the Judiciary to annul acts of the
state if they are incompatible with a higher
power (like the constitution)
-Typically associated with the name of John
Marshall

-Judicial Review in the Habits of the Colonial

Government
John Marshall (recap)

-Lawyer from Virginia

-Federalist party member
-Promotes strong national government over
strong state government
-Somewhat of a national hero because of his
involvement in the XYZ mission (Sometimes
called the XYZ affair, XYZ mission refers to a
diplomatic episode in 1797-98 with France.
French diplomats demanded bribes before
negotiations could even begin which offended
the American diplomats so it failed. All involved
(Charles Cotesworth Pinckney and Elbridge
Gerry) held in high regard. Inflamed antiFrench opinion in US)
-Was made Attorney General and Secretary of
State in the cabinet of John Adams
-Federalists were swept out of office during the
Revolution of 1800
-Became a Chief Justice after said revolution. It
was here that he judged on the landmark case
of Marbury v. Madison

Marbury v. Madison
-Regarded as one of the landmark cases for the
basis for the exercise of Judicial Review
-Doctrine of Judicial Supremacy
-Short review of facts:
>Marbury was appointed the Justice of Peace
by John Adams, a position which can only be
appointed by COMMISSION.

>Due to this, the petition of Marbury had to

be denied
-History: During this time the Supreme court
did not have much power, so Marshall thought
that if he granted the petition it would just be
disregarded by Jefferson who, as we know,
disliked Marshall. Although, if he ruled
negatively, judging the case needed no
enforcement and gave the impression that the
court was limiting its own power which was the
basic idea of Judicial Review - if a law is
unconstitutional it shall be subject to
invalidation by the Supreme Court, even the
Judiciary act of 1789.

John Marshall and the Constitution

-Believed in Judicial Nationalism (Judicial
meaning Judges and Jury + Nationalism
meaning Federal government outweighing and
controlling state government)
-Employed TWO clauses:
1. Contract clause: forbids state to pass a
law impairing the obligations of contracts.
Corporate charter are regarded as a
contract whose obligation could not be
impaired
2. Commerce clause: vested in congress
the power to regulate commerce with
foreign nations and among the several
states. By removing state attempts to
create barriers it promotes national
economic unity.

>Commission was not delivered by James

Madison who was the new Secretary of State.
>Marbury filed a petition of mandamus with
the Supreme Court for Madison to deliver the
commission
>Marshall agreed that it was the correct
course of remedial action but ruled that the
Supreme Court had no power over this due to
the lack of jurisdiction.
>>Constitution
vested
original
jurisdiction to the Supreme Court in all
cases affecting ambassadors, other
public ministers, and those in which a
state shall be a party.

Judicial Review Growing and Changing

-Supremacy of Judiciary over congress was
established BUT not exercised
-Still needed to broaden the base of Judiciary
before it could be regarded as fully established;
incomplete
-The two clauses established constitutional
limitations against states, but still needed
sovereign limitations against state and federal
government.

John Marshalls Successor

-Marshalls position as Chief Justice
succeeded by Roger Brooke Taney

was

>Secretary in Treasury in Jacksons Cabinet

>Fifth Chief Justice
>Most remembered for the Dred Scott case.

>More specifically the words due process

and equal protection clauses.
>Equal Protection created civil rights for
Negro Slaves
>Although it should be mentioned, 14th
amendment did fail to prevent racial
discrimination.

14th Amendment

Dred Scott Case

-Supreme Court had two rulings:
>First is that African American Slaves were
not citizens of the US no power to sue

-No state shall deprive any person of life

liberty or property without due process of law,
nor deny to any person within its jurisdiction
the equal protection of laws.

-First time since Marbury v. Madison that

Supreme Court had nullified a general act of
congress

-History of DUE PROCESS goes back all the

way to the Magna Charta (great charter of
liberties of England, used to limit power of the
King), Also inserted into 5th amendment to the
Federal Constitution, which was one of the bills
of rights to protect the liberties of the people
against encroachment of Federal Government.

-Was one of the events that lead up to CIVIL

WAR

>Basically
guaranteed
normal
judicial
procedure in the determination of rights.

>Federal Govt had no power to regulate the

slaves in ANY territory acquired by the US.

-Also included corporations as persons within

its meaning.

Mission of Taney
-Focused on restoration of rights for the state.
-Supposed to have forged the concept of
Police Power

Significance to Judicial Review

towards

-The requirement for due process acted as the

substantive limitation upon states and federal
power to legislate, this is what the power of
judicial review needed in order to be complete.

-He was a southerner so his dominant

motivation was the necessity for upholding
the states in dealing with the problem of
slavery

-Any state or Federal law which a majority of

Judges of the Supreme Court of the United
States
thought
unreasonable
became
unconstitutional and subject to nullification.

-Strengthening
of
tendency
progressivism and democracy

Civil War
-Judicial review - largely post-civil war creation
-War was between the Southern Confederates
(pro slavery) and the Northern Union (wanted
to abolish slavery)

XIX.3. Government of Laws

-Union won implied constitutional limitations

in the form for the 14th amendment

-Supreme Court

Behind the Constitution

>The old men of the Supreme Court have

become the guardians of constitutionality
>Has always been ready to remove statutes
that are doubtful in terms of their
constitutionality
>In the advantageous position of being able
to
declare
constitutional
acts
unconstitutional, but unconstitutional acts
constitutional
>The court of ultimate conjecture
-Chief Justice Hughes
>We are under a constitution but the
constitution is what the judges say it is.
>Government of Laws as Government of
Lawyers
>>The Court has declared that the
unconstitutionality of a statute must be
declared beyond reasonable doubt BUT
in
reality,
declarations
of
unconstitutionality
of
statutes
are
established by mere procedure (5-4 vote)

Constitutionality
-Matter of significant form
>E.g.
Constitution
permits
taxing
of
corporation profits unless they have been
converted to stock dividends
-Matter of fashion
>E.g. Restriction on labor hours for adult
men was unconstitutional in 1905 but
constitutional in 1917

Due Process
-Seem to be elusive in character

>>At that time, there were no laws

pertaining to minimum wage and child
labor but the Federal government was
permitted to deal with liquor evil and
white-slave traffic
Judicial Review
-Although of special significance in the general
development of law, such is the interest in the
constitutional functions of the Supreme Court
-Judicial duel undermined
-Since the American judiciary determines for
itself the nature and extent of its powers, it has
been able to resist all legislative attempts

XIX.4. Nine Old Men

-Refers to the Justices of the United States
Supreme Court
>Composition of the United States Supreme
Court: 1 Chief Justice and 8 Associate Justices
>The Supreme Court labored to protect the
people against possible encroachments of
the government, but the people occasionally
showed their ingratitude by amending the
Constitution
to
permit
the
very
encroachments against which they have
been protected
-Also there was never a time that the legal
order hasnt inspired discontent
>Before the Civil War: the SC was attacked
for upholding Congressional Legislation
>After the Civil War: SC was still attacked for
invalidating Cengressional and also State
Legislation
>In fact during the 20s until the 30s the SC
annihilated more laws than in its whole
existence

>Twilight Zone No regulation at all is

possible

-Attack inside the court also existed, with

Liberalists trying to find opportunities to put
Liberal Justices

>It seems that the old men of the Supreme

Court determine what is and what is not
regulated

>Some of these justices are Justice Holmes

and Brandeis, in which they established a
tradition of dissent

>>States cannot regulate industry

because the regulation of interstate
commerce has been entrusted to Federal
Government

-The conflict between the Traditionalists of

Supreme Court and of the Liberalist view
seems to have been highlighted during the
Roosevelt administration

>President Roosevelt introduced The New

Deal: a series of Presidential Decrees and
laws that are focused to stop the Great
Depression of the 1930s
>But the Supreme Court keeps on striking
these decrees down with respect to the
United States Constitution
>>Some of these laws are the National
Recovery
Administration
and
the
Agricultural Adjustment Act
>The Horse and Buggy Interview
>>Because of the traditionalist views of
the Justices, President Roosevelt railed at
the Supreme Court by proposing to retire
them all and appoint judges who could
understand the economic premises of the
New Age
>>Attacks by the president were merely
personal and there was no thought of
curbing the exercise of Judicial power
-Despite the conflicts between Liberalism and
Conservatism, the power of Judicial Review
itself remains undisturbed because of its
nature as a governmental device
> the Constitution, although written, must
necessarily exist only as a series of pious
political maxims
>> if it is too explicit, it ceases to be a
Constitution and it becomes a mere code
book

>Also, a court operating under the

guarantees of independence and impartiality,
will never be tempted to deviate from the
letter of the Constitution, which is the letter
of the law
-In the logic of the legal system, the
Constitution must necessarily mean what the
highest tribunal (Supreme Court) says it means
>Another dilemma now manifests in the
process of interpretation
>>Should the courts follow the strict
word of the sacrosanct character of the
constitution, or
>>Should they just set mere general
limits,
to
create
a
frame
of
government?
-Lastly, Judicial Review also introduced a
paradox in stating that the absolute reign of
law being synonymous with absolute reign of
lawlessness
>Supreme Courts technique of deciding
focuses on the momentous political issues,
and leave the relatively trivial questions
behind which can only have inevitable
consequences.