It is anything but clear that the Constitution meant to create the power of judicial review. Marshall's opinion is full of holes, both textual and logical. As Judge Learned Hand stated, Marshall's opinion "will not bear scrutiny." Professor Alexander Bickel of Yale University agreed in his work "The Least Dangerous Branch": "The opinion is very vulnerable."
Still, judicial review works well in theory. The basic principle is this: Legislative acts of the people may not trump fundamental, universal values as expressed in the Constitution. Alexander Hamilton phrased it this way in Federalist No. 78: "where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental."
But Hamilton admitted that if the judges were disposed to substitute their will for the will of the people, if "they should be disposed to exercise WILL instead of JUDGMENT ? [that] would prove that there ought to be no judges distinct from that [legislative] body." In other words, if the judges were to become merely a political branch, where a majority of five could trump a majority of the people while falsely claiming allegiance to the Constitution, then that would be an argument for dissolution of the judiciary as a distinct branch of government. Life tenure was supposed to guard against the politicization of the judicial branch.
Hamilton had faith that the judiciary would not overstep its bounds, due to its relative lack of power. But, he added, "I mean so long as the judiciary remains truly distinct from both the legislature and the executive."
Anti-federalist Robert Yates, writing under the pseudonym "Brutus," was more skeptical -- and, as it turns out, prophetic. Of the judiciary he wrote, "There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself."
This situation has come to pass. The Supreme Court has consistently, for the past 50-odd years at the very least, substituted its judgment for the judgment of the people, without regard to the Constitution. In Roper v. Simmons, five justices of the Supreme Court happily exceeded their powers by banning states from applying the death penalty for people under 18. Justice Antonin Scalia, dissenting, pointed out that the Supreme Court's usurpation undermines the entire basis for judicial review: "What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years -- not, mind you, that this Court's decision 15 years ago was
Scalia reiterated his point this week in a speech to the Woodrow Wilson Center think tank. If the Supreme Court is to be invariably and inescapably political, Scalia said, "you realize we have rendered the Constitution useless."
Indeed, we have. The time has come to do away with judicial review as a whole. The judicial branch has been politicized to such an extent that judges who fulfill Hamilton's qualifications -- judges who compare legislation to the actual Constitution -- are dubbed conservative extremists, while judges who legislate from the bench are termed moderates. The system has become so thoroughly corrupt that the only choice left to us is a Constitutional amendment ending judicial review of legislative acts.
"How can legislatures be trusted not to violate the Constitution, if there is no check upon them?" many will ask. The check will be the people themselves. If our elected lawmakers violate the Constitution, they will be answerable to us. This is not the case under our current system: Our judges are answerable to no one.
No doubt this view will be called radical. But, as "Brutus" wrote, "when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm ."