My Professor, My Judge, and the Doctrine of Judicial Review
Posted by Thom Lambert on April 3, 2012
Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun. Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise. Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5. You’d be a little embarrassed, right? You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.
Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.” Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas. Thus, a Wall Street Journal editorial queried this about the President who “famously taught constitutional law at the University of Chicago”: “[D]id he somehow not teach the historic case of Marbury v. Madison?”
I actually know the answer to that question. It’s no (well, technically yes…he didn’t). President Obama taught “Con Law III” at Chicago. Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student). Con Law III covers the Fourteenth Amendment. (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.) Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks.
Fortunately, another bit of my educational background somewhat mitigates the reputational damage inflicted by the President’s unfortunate comments. This morning, the judge for whom I clerked, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, called the President’s bluff.
Here’s a bit of transcript from this morning’s oral argument in Physicians Hospital of America v. Sebelius, a case involving a challenge to the Affordable Care Act:
Judge Jerry E. Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?
Dana Lydia Kaersvang (DOJ Attorney): Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Smith: I’m referring to statements by the President in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed – he was referring, of course, to Obamacare – what he termed broad consensus in majorities in both houses of Congress.
That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.
Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –
Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the President, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the President’s statements and again to the position of the Attorney General and the Department of Justice.
I must say, I’m pretty dang proud of Judge Smith right now. And I’m really looking forward to reading that three-page, single-spaced letter.
President Obama has just launched an attack upon the Supreme Court justices critical of the constitutionality of a 2,400-page health care bill passed exclusively by Democrats. Few if any of these Democrats actually read the bill in its entirety before voting for it. The president nevertheless wonders at how the Supreme Court justices, an "unelected" group of people," might muster the temerity to take such an "unprecedented and extraordinary step" as to "overturn a duly constituted rule of law ... passed by a majority of members in the House and Senate." I note in passing that the president ordered Holder's Justice Department to cease its defense of the "Don't Ask, Don't Tell" law passed by a bipartisan Congress.
The president's legal theory forms no part of constitutional jurisprudence. He claims no less than that the Supreme Court has no right or power to review the constitutionality of congressional legislation. The president's theory is nowhere approved or mentioned in a single state, federal, or Supreme Court case. It is not once mentioned in the Federalist Papers, a publication explaining the Founders' rationale for the drafting of a new constitution. James Madison did not once mention the theory in notes taken at the Philadelphia Convention. It is not taught at any law school in the United States. It forms no part whatever of American or British jurisprudence. In fact, it is an invention, a legal fiction, and an assault on the Supreme Court's powers of judicial view established by Supreme Court Justice John Marshall in Marbury v. Madison.
Where to begin? Well, first, the Supreme Court has been nullifying congressional legislation deemed unconstitutional for more than two hundred years. It is, therefore, boldly fallacious to suggest that "unelected Supreme Court justices" are now embarking upon an "unprecedented" usurpation of the Constitution. In fact, it is the people's constitutional right to challenge the constitutionality of congressional legislation. The Supreme Court, the highest authority on constitutional issues, is vested with the power and obligation to determine the constitutionality of legislation challenged by the people.
The Declaration of Independence expresses the first principles of natural law. "We hold these truths to be self evident; that all men are created equal, that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness." The principle is ancient -- in Caesar's Rome, Jus Gentium, the people's law, and in Great Britain, a Common Law derived from the ancient customs, traditions, and legal precedents of an English-speaking people. In the Magna Carta Libertatum, The Great Charter of Liberty, the British nobility created the first enduring draft of the American Constitution. One cannot read the now-ancient British Magna Carta without recalling the meter and power, the plain and enduring grace of the American Constitution's written word.
That said, the president's criticism of the Supreme Court justices does find support in the political doctrine of "Positivism." The positivist theory, developed in Germany following the First World War, holds that a natural law, or the rule of law, simply does not exist. The idea that men are endowed by their creator with certain unalienable rights is therefore patently absurd. "In short, every single tenet of the traditional conception of the rule of law is represented as a metaphysical superstition. ... The law by definition consists exclusively of deliberate commands of a human will." The legislature is not bound by precedent, by custom or tradition, or by considerations of justice. As apparently vulgar and irrational as is the positivist theory, Hitler used it to leverage the Nazi Party first to power and then to totalitarian power .
In his analysis of the positivist theory, F.A. Hayek writes:
It was consequently here that the ideal of the rule of law was first deprived of real content. The substantive conception of the Rechtsstaat, [a state bound by the rule of law]; which required that the rules of law possess definite properties, was displaced by a purely formal concept which required merely that all action of the state be authorized by the legislature. In short, a "law" was that which merely stated that whatever a certain authority did should be legal. The problem thus became one of mere legality. By the turn of the century it had become accepted doctrine that the "individualist" ideal of the substantive Rechtsstaat was a thing of the past, "vanquished by the creative powers of national and social ideas. ... This new formulation, known as the "pure theory of law" ... signaled the definite eclipse of all traditions of limited government. 
The concept of the rule of law and the subordination of central government to the enumerated powers of an American Constitution have created a most prosperous, just, and free United States. Americans break faith with the Constitution and the tradition of constitutional government only at their peril. Hayek's magnum opus, The Constitution of Liberty, was written long before America's present constitutional crisis. Nevertheless, Americans should recall Hayek's warning -- as relevant now as it was then -- and take it to heart, for:
Only a demagogue can represent as "antidemocratic" the limitations which long-term decisions and the general principles held by the people impose upon the power of temporary majorities. These limitations were conceived to protect the people against those to whom they must give power, and they are the only means by which the people can determine the general character of the order under which they will live.