America just got a civics lesson from a U.S. Senator on the role of the Supreme Court.  In his opening statement during the nomination hearing of Neil Gorsuch, Senator Ben Sasse explained the proper (albeit uncommonly-realized) role of a Supreme Court justice. According to Sasse, the Supreme Court, when it appropriately exercises the power of judicial review, defends the long-term will of the people. Sasse is right, and those who wish to defend limited government and the will of the people in the United States should be passionate both about defending judicial review and also about limiting judicial review within proper constitutional bounds.

Defending Judicial Review

Why isn’t judicial review undemocratic? Why is it alright for the elected representatives of the American people (i.e. Congress) to pass a law only to have it “struck down” by a panel of unelected, dour ivy-leaguers in black robes (i.e. the Supreme Court)?

Before we get to the answer, a brief refresher in American civics:  American constitutionalism as understood by the framers of the U.S. Constitution requires that the “will of the people” exists not in any single law passed by Congress but only in the fundamental law that is the U.S. Constitution. It is the Constitution that embodies the long-term will of the people.

The Constitution established an essentially-popular government, but the problem with all popular governments is the constant tendency of majorities to oppress minorities, particularly during temporary periods of political passion.  The framers therefore institutionalized certain checks against the temporary ambition of the majority through such features as the bicameral legislature (Article I, Sec. 2-3) and the executive veto (Article I, Sec. 7), while respecting the popular foundation of American political authority in the form of an original ratification of the U.S. Constitution in the people of the several states (Article VII) and of regular revisions to the fundamental law through amendments to the U.S. Constitution when a supermajority agrees to it (Article V).

So, the Constitution, taken as a whole, represents the will of the people bound by certain constraints to prevent tyranny of the majority. Any action of a congressman, president, or Supreme Court justice at odds with the U.S. Constitution therefore is at odds with the will of the people.  We have a word for that: unconstitutional.

What shall we say then of judicial review? If Congress passes an unconstitutional law, that law cannot in any true sense represent the will of the people, especially if it were to represent only some temporary spasm of political desire on the part of a majority of the country. This, in any case, was Alexander Hamilton’s argument in Federalist 78. According to Hamilton, when Congress passes a law that it had no authority to pass, it effectively “enable[s] the representatives of the people to substitute their will to that of their constituents.” When this happens, the Supreme Court may lawfully act as “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.” In this way, Hamilton explains the essentially-democratic nature of the practice of judicial review: “If there should happen to be an irreconcilable variance” between the Constitution and a law of Congress, “that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

Rather than being undemocratic, judicial review, rightly understood and rightly exercised, defends the long-term will of the people. As Sasse explained during the Gorsuch hearing, “When Congress passes an unconstitutional law, it is in fact the Congress that is violating the long-term will of the people, for the judiciary is there to assert the will of the people as embodied in our shared Constitution over and against that unconstitutional but perhaps temporarily popular law.”

The Limits of Judicial Review

While judicial review rightly-understood constitutes an essential feature of the American political system, unrestrained judicial review constitutes a dangerous deviation from democratic principles. Hamilton explains in Federalist 78 that judicial review does not “suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both.” When the U.S. Supreme court strikes down laws of Congress that are not in “irreconcilable variance” with the U.S. Constitution, the Supreme Court effectively substitutes its own will for the long-term will of the people as embodied in the U.S. Constitution as the final measure according to which all laws are judged.[1]

To be clear, this renders the American polity an oligarchy instead of a democratic republic, and it is no better than Congress passing laws that it has no authority to pass. Both constitute an attempt by our governors to substitute their own will for the long-term will of the people as embodied in the Constitution. In fact, Madison and Hamilton were clear in the Federalist Papers that although all three departments of government play a role in the interpretation of the U.S. Constitution (interpretations which receive institutional force in powers such as the legislative power of Congress and the executive power of the president), the “people themselves…can alone declare its true meaning and enforce its observance” through such things as elections and, of course, through amendments to the U.S. Constitution. The point is that the Supreme Court does not, any more than the president or Congress, provide a final interpretation of the Constitution for which there can never be an appeal. If that were the case, “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”[2]

So, is judicial review undemocratic? No! Rightly understood, judicial review is an essential bulwark of American liberty. But wrongly understood, judicial review is an abuse of court power, an abuse made more dangerous by many Americans’ lack of awareness of the importance of the American people – not the legislature, the court, or the president’s legal counsel – being the final judge of the meaning of the Constitution, which is itself the will of the people.


[1] These were Lincoln’s words in his First Inaugural Address when he was responding to the Supreme Court’s decision in Dred Scott v. Sandford (1857) in which the court held the Missouri Compromise of 1820 to be unconstitutional because it violated an alleged constitutional right of people to own other human beings as property that was protected under the 5th Amendment.

[2] The United States Supreme Court has, at various points, asserted, either implicitly or explicitly, that its constitutional interpretation, rather the Constitution itself, is the supreme law of the land.  One example of an explicit assertion to this effect occurred in Cooper v. Aaron (1958); for a discussion of this as a problem, see Edwin Meese, III, “The Law of the Constitution,” Tulane Law Review, Vol. 61: 979-990.