Against the Imperial Judiciary: The Supreme Court vs. the Sovereignty of the People.

• Author: Siegan, Bernard H.

The role of the Supreme Court under the United States Constitution has been a source of controversy since the framing of that document. The reason is that no provision of the Constitution accords the Supreme Court a review power over the other branches of government. Under the review power, the Court has authority to invalidate laws or regulations that it interprets as violating the Constitution. The Court has exercised this power on the basis of its interpretation of the Constitution beginning with Marbury v. Madison, decided in 1803.

In his scholarly book Against the Imperial Judiciary, Matthew J. Franck takes the position that the judiciary's interpretative authority under the Constitution is subordinate to that of the Congress. He rejects any judicial veto power over Congress. If the people believe that Congress has passed measures that violate the Constitution, they can go to the polls to change the Congress or they can amend the document to reverse the provision in question. The only other remedy, according to him, is the one contemplated in the Declaration of Independence: revolution. This is appropriate whenever a "long train of abuses and usurpations" shows the government to be destructive of the purposes of the social compact.

Franck supports his thesis by explaining that both John Locke and William Blackstone, two commentators highly regarded in the late eighteenth century, believed in legislative supremacy and accepted public voting or revolution as the only ways to remove laws that are not legitimate. Courts were not to decide what rights people possessed but t6 serve as arenas for resolving conflicts between individuals over these rights. The only other function for the judges was to serve an epideictic role with the "aim of keeping alive and vibrant the people's appetite for and ethic of generous republican liberty."

In my view, Franck's interpretation of congressional power is in error. The proposed Constitution of 1787 would not have been ratified if the public believed that the Congress's powers were supreme. In framing the United States Constitution, the Constitutional Convention of 1787 rejected a fundamental principle of English government, the sovereignty of Parliament. In place of legislative supremacy the framers established a divided and limited government of three branches, each with power to monitor the others in fulfillment of constitutional terms and purposes.

Fearing legislative supremacy as hostile to freedom, the delegates to the Constitutional Convention turned down an effort to give Congress immense powers. The Committee of Detail recommended that Congress be given the sweeping power to provide for the well managing and securing the common property and general interests and...