Judicial ReEngineering

REGENT UNIVERSITY LAW REVIEW
[Vol. 14:141
power in the judicial, will enable them to mould the government, into
almost any shape they please. 132
Though some may think that this is exactly what happened, and
there is ample cause to think as such, it is not what the Founders
intended. "In its inception, judicial review was a limited and legalistic
concept, a product of logic designed to serve a carefully defined
purpose." 133 The "legalistic concept" was for the Court to serve as one of
the checks on the other branches powers. As Hamilton responded to the
charge,
The courts must declare the sense of the law; and if they should be
disposed to exercise WILL instead of JUDGMENT, the consequences
would equally be the substitution of their pleasure to that of the
legislative body. The observation, if it proved any thing, would prove
that there ought be no judges distinct from that body [Congress]. 134
Forming a government without a judiciary had already been tried
under the Articles of Confederation, an abysmal failure, and so the
Founders (and even more importantly the People, who ratified the
Constitution) were not about to make the same mistake twice. Hamilton
and other supporters of the Constitution truly believed that the judiciary
would possess "neither Force nor Will, but merely judgment; and must
ultimately depend on the aid of the executive arm even for the efficacy of
its judgments." 135 In other words, the powers vested in the judiciary were
the least susceptible to despotism, because the courts could do little or
nothing without the acquiescence of at least one of the other two
branches to carry out their decisions.
Regardless of what the Founders intended, because of the absence of
an explicit rendering in the text and its ostensible operation as an antidemocratic
device, judicial review is "a deviant institution in the
American democracy." 136 Judicial review is not celebrated (outside
132 "Brutus" XI, N.Y. J. (Jan. 31, 1788), reprinted in 2 DEBATES, supra note 26, at
129, 132, 135.
133 EATON, supra note 9, at 13.
134 THE FEDERALIST No. 78 (James Madison), reprinted in 2 DEBATES, supra note 26,
at 471.
135 Id. at 468. Hamilton's point is buttressed by the findings of Forrest McDonald,
who writes:
The delegates devoted less time to forming the judiciary-and less
attention to careful craftsmanship-than they had expended on the
legislative and executive branches. In part the judiciary received minimal
consideration because it was regarded as the least powerful and least active
branch of government. In part, too . . . the delegates were in general
agreement as to the principles that should be embodied in forming it.
MCDONALD, supra note 82, at 253.
136 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT
AT THE BAR OF POLITICS 18 (1962). It should be noted that not everyone agrees that the
Court, properly understood, is a countermajoritarian device. It can be argued that when
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