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I will hijack the thread one last time, but I believe I can put into a relevant historical context for our discussion here.

On the issue of Judicial Review, I want to make it clear that I am very much in favor of the concept. I believe the ability of the Supreme Court to declare acts of other branches and of the states to be void if they contradict the Constitution is the single most important factor the kept us from becoming another Banana Republic or collection of Banana Republics. Without the concept of Judicial Review, and the Court acting as the protector of the Constitution as the higher or supreme law of the land, our Constitution would have very quickly become a dead letter, and with it the Rule of Law would also have died.

Look at McCulloch v. Maryland and Gibbons v. Ogden. Without those two decisions establishing federal supremacy and the powers of Congress, our federal system would in effect have been stillborn. We would have gone back to a political system in all practical effects little different than existed under the Articles of Confederation. Ultimately, we would have been a collection of competing independent nations rather than a single entity.

In addition, you could not trust Congress or the President to honor the Constitution. Case in point; the Congressional “gag rule” prohibiting debate of slavery on the floor of the House of Representatives. The “gag rule” was clearly unconstitutional under Article I Section 6 and the First Amendment. Yet Congress passed and enforced it on their own members. The Dred Scott decision, as bad as it was, influenced the decisions of two Presidents that they could not act unilaterally against slavery, as it would be unconstitutional. Even before the “gag rule,” there was the issue of “banning” distribution of abolitionist pamphlets in the south. President Jackson favored a Congressional statute authorizing postmasters to seize and destroy the materials, but Calhoun balked at the thought of this exercise of Federal power inside of a sovereign state. Calhoun favored state law directed at the postmasters, as a way of circumventing that issue and the First Amendment, which at the time did not apply to the states. Jackson didn’t like the idea of a state issuing orders to Federal officials, so nothing was formally implemented. Federal postmasters did exercise their own initiative to seize and destroy the pamphlets, but nobody seemed concerned about the First Amendment violations.

Also, consider that without the concept of Judicial Review, Brown would have gone to segregated schools, Gideon would not have an attorney, Miranda would be interrogated after asking for an attorney or declining to speak, and Mapp would be convicted on evidence unlawfully seized. These are very real checks on the power of government. Without Judicial Review, what real checks would there be?

Bit what tempered the exercise of Judicial Review was the concept of Judicial Restraint. Even before Marbury v. Madison, in Calder v. Bull (1797), the Court declared that it would not rule on questions of state constitutional law. After Marbury, in Barron v. Mayor of Baltimore, the Court held that the Bill of Rights did not apply to the states, only the Federal government. The Court later developed doctrines of case & controversy, standing, and political question, which kept the Court from deciding issues not best decided by Courts.

The tension over the proper scope of Judicial Review was seen as early as Calder v. Bull. In his majority opinion, Justice Chase intimated that the Court could strike down a statute based on principles of “natural law.” In an opinion concurring in result, Justice Iredell disagreed, and stated that the Court could only look at the text of the Constitution to determine if the statute was in violation. For most of the tenure of the Supreme Court, Justice Iredell’s doctrine governed, but it has now clearly switched to Justice Chase’s, and with predictably subjective political results. That doesn’t mean that the concept of Judicial Review is bad, but the application in the present context is, because the doctrines of Judicial Restraint have withered.

So, I guess I got it back somewhat to our historical context.

As for the loss of Justice Scalia, the judiciary as a whole will miss the clarity of his thought and his relentless logic. I would have enjoyed spending an evening talking to that man. Or better and more likely, listening to him. As for his replacement, the use of the Heritage Foundation to make recommendations is an excellent idea. I don’t know any specific judges I would favor for the Court, but I would trust those folks to make good assessments.

Hey, I’m available.

The problem is not with the Court’s right and authority to decide the cases that come before them according to the Constitution. That authority belongs to them, or, as Marshall said so clearly in Marbury vs. Madison, their oath is “worse than solemn mockery.”

The problem is with the idea that the Court gets to decide what is constitutional for the other branches, and to enforce their opinion as “the law of the land,” and as being superior to the actual law of the land, which is the Constitution.

This whole judicial supremacist idea is, in fact, a coup d’etat against constitutional, republican self-government.

“I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government...At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions 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.”

— President Abraham Lincoln, First Inaugural Address