The Quandary of Judicial Review
It’s not just a question of “restraint” versus “activism.”
What is the proper role of courts in our system of government? Ever since the seminal decision in Marbury v. Madison (1803), the concept of judicial review has made the courts — and in particular the U.S. Supreme Court — the ultimate arbiter of whether a state or federal law violates the Constitution. Just as baseball umpires are sometimes criticized for their calls on the playing field, the exercise of judicial review has periodically exposed the Court to complaints that it has erred either by being too aggressive in striking down laws (in conventional parlance, “judicial activism”), or by not being aggressive enough in overturning laws (sometimes called “judicial passivity”). This is a longstanding argument among all political camps, but it became a topic of controversy on the right this January, when, speaking at the Heritage Foundation, Senator Rand Paul endorsed “judicial activism,” igniting a debate between libertarians, who tend to see judicial review as a constraint on majoritarianism, and conservatives, who tend to see it as a font of judicial activism. In reality, it has been both, as the Court’s role and national politics have changed over time. In order to understand the debate, one must reach beyond the superficial labels “activism” and “restraint,” and one must also consider the complicated lineage of modern judicial review.
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