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Judicial Review: A Power ALL Three Branches Share

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The phrase, “ambition must be made to counteract ambition” is the bedrock of the American government. It’s the premise upon which the founders structured the government to protect the country from having to face down a tyrannical government. Government was to be broken apart into so many different departments with so many different heads of power and different kinds of power that no one part of government could ever take full control. They must all check each other’s power according to the Constitution.

There’s an aspect to this idea that I’ve never really known or talked about, but it’s of the upmost importance for all citizens of this nation to not only know but seek to promote and require of our government officials. The aspect is this:

It’s the job of each branch, legislative, executive and judicial, to interpret and apply the Constitution to every action of government.

Of course, you may say. Government is supposed to know the Constitution and keep it.

Yes, but pay attention to my wording. We tend to attribute the job of “judicial review”–the ability to declare a federal action unconstitutional and therefore null and void–exclusively to the Supreme Court. This assumption, that only the Supreme Court, possesses the power to interpret and apply the Constitution to government behavior, means that the Supreme Court is supreme, not the Constitution.

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And remember, Article 6 of the U.S. Constitution specifically says that the “Constitution… shall be the Supreme law of the Land”, establishing the immutable reality that only the Constitution reigns supreme in the United States. No one, not the president, or Congress, or the even the Chief Justice of the Supreme Court is above the Constitution. We live in a Constitutional Republic where only the Constitution reigns supreme. In America, no branch of government is supreme. The governemnt as a whole is not supreme. The Constitution is supreme. It is the written Constitution that prevails over every other source of authority in the United States.(Paulsen and Paulsen 2015, 26)

And yet, if one branch of government is given the exclusive right to interpret and apply that Constitution, while the other branches must be subject to how that Constitutional interpretation affects, changes and manipulates their powers–with no say whatsoever–the Constitution would merely be subject to that branch of government rather than that branch of government being subject to the Constitution.

This kind of power in the Supreme Court was exactly what the Anti-Federalists feared. Paulsen and Paulsen (2015) explained the Anti-Federalist fears this way:

"Ultimately, however, some federal court would have the final judicial power to decide lawsuits involving questions of federal law--including questions of constitutional law. And that was a power with real consequence. Anti-Federalist opponents of the Constitution saw in this power a dangerous Trojan horse. The power to interpret the Constitution, they feared, was uncheckable by anyone; the courts could thus most the Constitution into whatever they wished it to be, in effect rewriting it at will in such a manner as to give the national government all power and to erase the rights of the states and the liberties of the people. No one would be able to stop the judges, and the judgest would hold their offices for life. They would become an all-powerful branch of government, with supreme power over everyone else in our constitutional system. 

They [the Court] would not 'confine themselves to any fixed or established rules,' but would invent the results they wanted based on 'the reason and spirit' of the Constitution rather than its words. ... thereby 'give such meaning to the will enlarge the sphere of their own authority...This power in the judicial, will enable them to mould the governmetn, into almost any shape they please'." 

These arguments carry tremendous weight, as they did at the time as well. How would the American citizens, and the state legislatures overlook this potential Trojan horse? How could the defenders of the Constitution mollify these very valid fears in order to secure the ratification of enough legislatures to make the Constitution official?

The answer the Federalists, supporters and writers of the Constitution, gave to these questions is precisely what I already laid about above.

Madison said in The Federalist No. 49. that none of the branches “can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”

"...Hamilton's explanation of the power of judicial review turned [the Anti-Federalist's] argument on its head: the power of 'judicial review' did not mean that the judiciary was supreme over the other branches; it meant that the Constitution was supreme over all of them. They would each serve as checks on one another, and they would all equally be bound by the Constitution--including the courts." Paulsen and Paulsen (2015)  
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Hamilton and Madison both pointed out in The Federalist papers that the executive and legislative branches possessed powerful checks on the courts–the presidents ability to execute the law and the legislative’s ability to impeach judges and justices–that they could employ if the courts abused their power to interpret the Constitution. In other words, it’s not only the job of the courts to interpret, apply and invalidate government behavior according to the Constitution, but rather, the job of interpreting, applying and invalidating government behavior according to the Constitution is the job of every branch of government because the Constitution is Supreme. In other words, the Anti-Federalists need not fear the power of the courts because the courts had not been given exclusivity to the power of judicial review. That power was given to every branch.

The Constitution is the “supreme Law of the Land”.

"Thus, any act by any of the branches that is contrary to the Constitution must be regarded as illegal. "No legislative act, therefore, contrary to the Constitution, can be valid," Hamilton wrote. Moreover, the idea of separation of powers meant that no one branch could be the exclusive judge of the constitutionality of its own actions, lest that branch be enabled to put itself above the Constitution." Paulsen and Paulsen (2015) 
And yes, Paulsen and Paulsen point out, "Indeed, in some respects the Supreme Court in modern times has become far more powerful and prominent than the framers possibly could have imagined. It has sometimes claimed that its interpretations of the Constitution are supreme over the interpretations of everybody else in our constitutional system. And--ironically--the other branches of government, at least in recent years, have tended to go along with this claim". 

My friends, the Constitution was made Supreme over all government, meaning that even the Supreme Court can be and has been wrong. It’s therefore incumbent upon the other branches of government to carry the burden of protecting and promoting the Constitution just as much as the courts presumably do. In our American system of government the power of Constitutional interpretation does not fall exclusively into the hands of the courts, but rather equally into the hands of every part of the government so as to ensure no one branch every becomes supreme over the Constitution.

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My mind is blown.

How far our understanding of the government, the Constitution and judicial review has wandered from this? How much more power would the other two branches, the legislative and executive, have when dealing with the judicial branch if they simply saw themselves as guardians of the Constitution as well? How might a simple change in perspective in the citizenry right the ship and restore Constitutional supremacy rather than judicial supremacy?


Further, how might this understanding of the Constitution and the entire government’s responsibility to interpret and apply it affect how we assess the how well our representatives, both legislative and executive, are fulfilling their oaths, their job descriptions?

How many of us can say with full confidence that we know our representatives are studying and applying the Constitution to every action they take and every action the rest of government takes? Furthermore, do we know they apply it to all government behavior because they understand the somber and grave responsibility they possess in protecting the supremacy of the Constitution?

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How many of us can say with confidence that we know that our politicians are spending as much time studying to show themselves approved in knowledge of the Constitution as they are campaigning, writing new legislation or debating?

How many of us can say in full confidence that our elected politicians refuse to leave Constitutional interpretation only to their lawyers and staff members, or even the courts, because they know and understand that they, even they, possess the same critical responsibility of knowing, interpreting and applying the Constitution–and they know that their interpretation matters just as much?

How many of us can say in full confidence that our elected representatives realize that if they leave Constitutional interpretation exclusively to the courts, lawyers or any one branch, that they have personally and willfully forfeited their power and sacrificed the supremacy of the Constitution to the supremacy of that branch or lawyer? No single interpretation should every stand. Ambition must always be made to counteract ambition.

If your confidence waivers in this, consider the cost.

The Liberty Belle

5 thoughts on “Judicial Review: A Power ALL Three Branches Share”

  1. R. Bruce Hartnett

    Unfortunately, all three Branches have now, for several Decades, forgone their Constitutional duties!
    Recalling Marbury vs. Madison (1803),, especially noting, “A Law repugnant to the Constitution is void.”
    You again remind me of an opinion from a few months ago, in which I fully agree & act out in life:
    Keep on Keepin on!

  2. Pingback: A Power ALL Three Branches Share – The Liberty Belle –

  3. Wait a minute. You’re saying an understanding of the Constitution is more important to our elected representatives than knowing their party’s platform and next week’s fundraising schedule? You’re really a Russian bot, aren’t you? 😅

  4. Bob Manderville

    “The phrase, “ambition must be made to counteract ambition” is the bedrock of the American government. It’s the premise upon which the founders structured the government to protect the country from having to face down a tyrannical government. Government was to be broken apart into so many different departments with so many different heads of power and different kinds of power that no one part of government could ever take full control. They must all check each other’s power according to the Constitution.”……………….
    Judicial Review: A Power All Three Branches Share……..Liberty Belle blog 6 March 2023

    .When our government was originally drawn up there was only one half of one branch that the PEOPLE actually had any say in determining. The Executive branch (Presidency) was decided by the Electoral College, the Judicial branch (Supreme Court and federal judges) was picked by the President and confirmed by the Senate and Congress was split. The Senate was appointed by the state legislatures (this was done to protect the states interest from being dominated by the federal government) and the House was directly elected by the people. Each one had a separate elector by which they were supposed to have been the checks and balances or as Madison said “ambition must be made to counteract ambition”.

    Often the problem isn’t that the government is unresponsive but that it is too responsive. Little by little these checks were done away with and the power went to the other branches. In 1912 Theodore Roosevelt campaigned in the attempt of having Supreme Court Judges elected by the people and in 1917 the Constitution was amended to have Senators directly elected thus having the checks and balances put into hands not intended by the founders. As has been the case in the past few years our political class is attuned to the cultural and societal wants of their constituents even if their wants come strictly from emotions, frustrations and false narratives. Elected officials (in both the Executive and Legislative branch) will pander to the public demands with the belief that if it’s unconstitutional it will be challenged by the courts but for the time being I look good during my campaign. The Supreme Court meanwhile appointed strictly along partisan lines, usually follows that party’s line with their decisions. Pandering to the majority without concern to the Constitution seems to be the predominate logic currently being used by the governor of Florida, the President with his student loan forgiveness and the Supreme Court with Dobbs.

    There is a Latin phrase: “Quis custodiet ipsos custodes” which says “Who will guard the guards themselves” that we need to be following more than ever now.

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