Editorial: The moral limit to judicial review

Kelli Ann Cox, Publisher, The Golden Hammer

It’s been 55 years since Herbert Wechsler, the Harlan Fiske Stone Professor of Law at Columbia University Law School, wrote his remarkable article in the Columbia Law Review, “The Courts and the Constitution.” In that article Wechsler asked two questions: (1) “What are the practical political limits within which the Supreme Court exercises its august authority to set aside the actions of the other branches of Government of the United States or of a State as inconsistent with the Constitution?” (2) “What are the moral limits of the power that this great responsibility entails?”

Wechsler answered his questions basically with this answer: “…under Marbury the Court decides a case; it does not pass a statute calling for obedience by all within the purview of the rule that is declared.”

In other words, Wechsler found the moral limit of the power of judicial review existed precisely at the point at which the Supreme Court or other courts crossed the line into passing rules “calling for obedience by all within the purview of the rule that is declared.”

Why is that the line which constitutes a moral boundary? Because, in the American system of government, all power emanates from the people in two forms. First, Americans vote their beliefs and must continue to be free to do so. Second, Americans expressed their fundamental philosophy, agreement, and consensus of the method of governing in the United States Constitution and in the Declaration of Independence which preceded it.

Any assertion of governmental authority, which falls outside of the boundary of those two forms of power is a raw usurpation of power, a violation of law, and a violation of the basis of the consensus, which formed and continues to constitute the United States of America. Therefore, when so-called “judicial review” crosses the line into passing rules “calling for obedience by all within the purview of the rule that is declared,” the actions of courts are a usurpation of judicial power and of the very Constitution judges swear they will uphold and defend.

Now, let’s take the example of a recent Supreme Court decision and see how far our judiciary has fallen. The 2015 United States Supreme Court decision in Obergefell versus Hodges involved only four states, Michigan, Kentucky, Ohio, and Tennessee. In a 5 (Kennedy, Ginsburg, Breyer, Sotomayor, Kagan) to 4 (Chief Justice Roberts, Scalia, Thomas, Alito), the Supreme Court didn’t merely decide the dispute between the litigants before the Court. Going far beyond the specific dispute in front of the Court, the five liberal Justices held “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”

In other words, when the Congress and American states adopted the Fourteenth Amendment to the United States Constitution on July 9, 1868, the intent of that Amendment to the Constitution was to require all states to license same-sex marriages and to recognize marriages between two people of the same sex when their marriage as licensed and performed in another state. It would have been very hard for members of the United States Senate, the United States House of Representatives, or the legislatures of the twenty-eight (28) states, which ratified the Amendment, to have conceived of same-sex marriage at all, let alone that the Fourteenth Amendment, which they approved, would force all states to license those types of marriages.

Specifically, that’s an example where the Supreme Court of the United States crossed the moral line. They usurped power of the legislative branch and engaged in conduct – making legislation by “calling for obedience by all within the purview of the rule that is declared” – far beyond the Court’s moral authority.

You see, morality rules over politics. They’re not separate and apart from each other. In Obergefell and the host of decisions rewriting American statutes, such as the recent decision by the Supreme Court adding gender preference as a “suspect classification” under Title VII of the Civil Rights Act of 1964, the Supreme Court of the United States crossed the moral line.

When American presidents and American voters interview judicial nomination candidates, perhaps the most important question any of us can ask them is “Do you agree to follow and stay within the moral limits of judicial authority, so that judges should never call for obedience by all within the purview of any rule that they declare in a specific judicial decision?” That question cuts to the core of the concept of Due Process. How can someone be subject to a judicially-declared rule, if they have never had notice and the opportunity to be heard in the dispute wherein the judge or judges rendered their decision?

 

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