As George W. Bush settles on a replacement for Sandra Day O'Connor, an usettling question arises: Is the problem not so much the political outlook of the judges, but the powers that all judges--Left and Right--have assumed? "The power to strike down laws isn’t mentioned, or even hinted at, in the Constitution," writes Joe Sobran. "The Court’s few powers are set forth in a couple of paragraphs. Judicial review isn’t among them."

Article 3, Section 2 of the Constitution reads: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

If the Constitution contains no specific charge for the Supreme Court to veto state laws or to review laws passed by Congress and signed by the President, why should we be surprised when they use this usurped power to invent sections of the Constitution that aren't there (the right to privacy) and overlook other sections of the Constitution that are there (the right to keep and bear arms)?

Two ideas:
First,
The 4th and 9th amendments protect the right to privacy which predates the Constitution.
Second,
In 1803 Chief Justice Marshall ended the issue of the court's authority in Marbury v. Madison with; "that a law repugnant to the Constitution
is void; and that courts, as well as other departments, are bound by that instrument."

Guido, please be a little more specific and state EXACTLY where the 4th and 9th amendments either protect or set forth a right to privacy. Thank you.

Good post and good question regarding the Court.

Sobran is right - its power is unchecked. I have argued elsewhere that Congress can and should use its power to limit the jurisdiction of federal courts and the Supreme Court to let controversial issues be decided by the people of the 50 states. I was happy to see the House of Representatives pass a bill that did exactly that last year - eliminating federal jurisdiction over lawsuits pertaining to the Pledge of Allegiance.

Asserting Congress' Constitutional authority over the judicial branch and not playing the judicial nomination/confirmation game is the ultimate way to combat judicial activism. Judge Robert Bork, who I generally like on a number of issues, holds on to the former course (appointing strict constructionists) as a remedy to the problem. In his recent book Coercing Virture he dismissed invoking Congress' power to determine jurisdiction and send issues back to the states on the grounds that it would generate "50 different" views of Constitutional law. But that, Judge Bork, is precisely the point of that strategy and - considering the miserable failure of GOP Presidents to get conservative jurists on the Court (7 of the 9 current Justices are Republican nomineees) - I further submit that the possibility of its success is much higher than on relying on the blissful hope that a Republican president will nominate and oversee the successful confirmation of a strict constructionist that sways the ideological balance of the Course

If Congress wanted to, it could overturn Roe v. Wade tomorrow. If this is the case, why hasn't our supposedly "pro-life" President and his Party gotten behind the efforts of people like Rep. Ron Paul to do just that?

Furthermore, on a related point, the idea that the Court can provide some sort of "check" on the power and growth of the federal government is misguided for, as historian Thomas E. Woods has pointed out, it is part of the federal government. That check, rather, was to be provided by the people acting through their respective state legislature. But that concept, as Sobran alludes to in his piece, was another casualty of Lincoln's war against secession.

Hello Guido: Your Marshall quote doesn't get of the ground in this matter... Of course all laws repugnant to the constitution are void! No one's debating that, I think.

The question is -- who made the SC the final arbitor on which laws are repugnant to the constitution? Not the constitution. Perhaps I'd grant that the SC has a duty to declare null and void all constitution-repugnant laws. OK. By the same token so would the Pres, the Congress, every governor, every state legislature, every citizen... They all have the duty to call unconstitutional laws null and void.

The SC has unconstitutionally usurped a monopoly on declaring laws unconstitutional. No court precedent can make that valid without begging the question.

Love,

The argument that John Marshall "ended the issue" is either a logical one in which case it is circular (If he didn't have the power he certainly could not have ended the issue) or it is poor history (there is little or no historical evidence that his contempories thought that he had ended the issue).

However, the Federalist Papers endorse a version of "judicial review":

"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, 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."

But the cureent orthodoxy of judicial supremacy has no foundation in the Founders' thought. Hamilton went on in Federalist 78:

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both;"

And later in the Paper he explained about Federal judges that "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them;"

Proper judicial review is an important part of democratic government. What the progressives have given us under the false title of "judicial review"--a system where judges are not "bound down" by anything--is profoundly undemocratic.

"Proper judicial review is an important part of democratic government."

Democracy is for suckers.

The Sage DocMcG and the ever-ready Short ;-)
It is true that Marshall assumed that it is the duty of the judges of the Supreme Court to view the Constitution as supreme over the Congress and the President (see Nixon tapes) and are called upon to sustain it thusly. For two hundred years the practice (in spite of Thomas Jefferson's objections) has remained unshaken. Something must be said for conservatism.

Guido, the Constitution is supreme over Congress and the President. Shouldn't it be supreme over the courts too?

Guido, can I assume that since you have not responded with an explanation of EXACTLY where in the 4th and 9th Amendments a "right to privacy" is set forth, you agree with the rest of us that it really isn't there? Thanks

Thom,
I think that the Ninth Amendment is self explanatory. See also 'Griswold v. Connecticut' where Connecticut's birth-control law unconstitutionally intruded upon the right of marital privacy. Ignoring the Ninth Amendment cost Judge Bork a seat on the Supreme Copurt.

Guido:

1. Note well: "Griswold v. Conn." is not part of the constitution. Thus, this doesn't answer Thom's question.

2. I agree that the 9th amendment is rather clear: the only powers the people are giving up to the US government are those enumerated by the constitution. Everything else else is retained as a right of the people. Isn't that what it means?

Now, it's an acrobatic contortion to use that as an excuse for the federal government to force the people of Connecticut to not outlaw the sale of artificial contraception. The people of Connecticut retain that right via the 9th amendment. No?

Love,

My view has always been very simple just based on how it is worded and my own understanding of the relationship between the federal and state governments. The 9th amendment simply recognizes that many states have their own bill of rights, and the federal government cannot abridge those rights.

Prior to the 14th amendment, and even after it if you are an originalist, the federal bill of rights were not incorporated to the states. Say for instance the 2nd amendment didn't exist and Congress tried to ban guns nationwide. One could point to the 9th amendment, then to the right to bear arms in the Massachusetts state constitution, and from that say that Congress did not have the power to do such a thing because it would abridge the right to bear arms that Massachusetts citizens retain.

The right to privacy that came from Griswold and evolved with later cases is quite a queer thing. It doesn't really apply to anything at all except contraception and abortion. If you want to say that such a right to privacy is explicit in the Constitution it must have something to do with the 4th amendment's prohibition against search and seizure, but we all know that a man's home is in fact not his private castle. You can't do drugs in your own house and then claim the cops violated your privacy when they break down the door. You still go to jail for doing drugs or possession or whatever. But an abortion behind closed doors? Sacrosanct.

What of this marital right to privacy? I can accept an argument from common law for such a right to marital privacy. But how do we then explain that this right now applies to anyone and everyone, people not even close to having a relationship that could be construed as marriage. Hell, it's a strain to even use the word relationship for most people hooking up and shacking up.

Anyways, I think we all need to read Randy Barnett's book on the 9th amendment. At least I do so I have a real understanding of what the 9th means.

crap. i was absolutely right. bush squanders his change to change the court and appoints a maudlin moderate more concerned with making friends than upholding the constitution. John Roberts...=( i hate being right.

oops! i may have spoken too soon. there are conflicting reports. in some cases he has said Roe v. Wade should be overturned, and in others he has stated it is settled law. strange...i hope i'm wrong