- The Washington Times - Thursday, July 23, 2009


Gerald R. Rosen falls into error in his review of James MacGregor Burns’ book “Packing the Court” (“Politics behind high court’s nominations,” Plugged in, Tuesday). It is not clear whether Mr. Rosen is relating alleged facts as he has ascertained them or is relying on the author of the book he is reviewing.

Mr. Rosen writes: “Moreover, the records of the debates at the Constitutional Convention offer no indication that judicial review of acts of Congress was what the delegates had in mind. In fact, it was never even discussed. The power of judicial review was simply seized by Chief Justice John Marshall in the court’s landmark 1803 decision in Marbury vs. Madison.”

Even though there was no systematic discussion of this question in any convention — federal or state — the consensus of the Framers and ratifiers was that the Supreme Court would refuse to enforce any statute it deemed to be unconstitutional. Judicial review of legislative acts was sanctioned expressly or by implication many times at the Constitutional Convention, at the state conventions and in Congress. Proponents and opponents of the Constitution sanctioned judicial review. The context of these sanctioning comments often was a discussion of the proposal — not adopted — to give the federal judiciary a veto of federal statutes similar to that given the president.

That the Supreme Court has vastly exceeded the role envisioned for it by the Founding Fathers is known to anyone who knows the history of the framing and ratifying of our Constitution. This is where we are with the result-oriented Supreme Court jurisprudence of the last 50 years: Never mind the text and structure of the Constitution; never mind the history of the enactment of the provision at issue; never mind the views of other branches of government; never mind the Court’s own precedents. To achieve results that it deems desirable, the Supreme Court will read things into the Constitution that are not there (e.g., the “right to privacy”), and it will read things out of the Constitution that are there (e.g., the Tenth Amendment).

Fighting these encroachments must be done in other ways than by arguing that the power of judicial review was seized by the Supreme Court. It is the scope of that review that should be at issue.



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