Judicial ReEngineering

20011
PROPER JUDICIAL ACTIVISM
judicial review, one that John Marshall would copy later in his Marbury
v. Madison 128 opinion.
The complete independence of the courts of justice is peculiarly
essential in a limited constitution .... Limitations of this kind can be
preserved in practice no other way than through the medium of the
courts of justice; whose duty it must be to declare all acts contrary to
the manifest tenor of the constitution void. 1 29
The argument for judicial review given here is purely structural:
judicial review exists because of the fact of a written constitution and the
need to keep a limited government within its proscribed boundaries.
Hamilton carries the structural importance of the judiciary even further.
"[Tihe courts," Hamilton says, "were designed to be an intermediate body
between the people and the legislature, in order, among other things, to
keep the latter within the limits assigned to their authority." 130 Hamilton
was not the only Founder to explicitly argue for judicial review, 131 and
each made the appeal on structural and institutional grounds, taking
care to emphasize the independence of the judiciary.
Brutus also predicted the existence of judicial review, but, unlike
his adversaries, he did not look upon the innovation as a cause for
celebration. He charged that
in their decisions [the Supreme Court] will not confine themselves to
any fixed or established rules, but will determine, according to what
appears to them, the reason and spirit of the constitution .... This
128 Marbury v. Madison, 5 U.S. 137 (1803).
129 THE FEDERALIST No. 78 (James Madison), reprinted in 2 DEBATES, supra note 26,
at 469.
130 Id. at 470.
131 James Wilson, second only to Madison in influence on the crafting of the
Constitution, and later a justice of the Supreme Court, remarked in the Pennsylvania
ratifying convention that "when [congressional legislation] comes to be discussed, before
the judges-when they consider its principles, and find it to be incompatible with the
superior power of the constitution, it is their duty to pronounce it void." James Wilson
Replies to Findley (1787), reprinted in 1 DEBATES, supra note 26, at 820, 823.
Oliver Ellsworth, a staunch Federalist and later Chief Justice of the Supreme Court
for four years, described his view of the courts under the proposed constitution in the
Connecticut ratifying convention:
This constitution defines the extent of the powers of the general
government. If the general legislature should at any time overleap their
limits, the judicial department is a constitutional check. If the United
States go beyond their powers, if they make a law which the constitution
does not authorise, it is void; and the judicial power, the national judges,
who to secure their impartiality are made independent, will declare it void.
Oliver Ellsworth Defends the Taxing Power and Comments on Dual Sovereignties and
Judicial Review (1788), reprinted in 1 DEBATES, supra note 26, at 887, 883; see also,
"Americanus" [John Stevens, Jr.] VII, DAILY ADVERTISER (N.Y.), (Jan. 21, 1788), reprinted
in 2 DEBATES, supra note 26, at 60.
HeinOnline -- 14 Regent U. L. Rev. 163 2001-2002