Citing what he describes as “extreme behavior” on the party of the judicial system, Gingrich proposes a system wherein “it’s always two out of three.”

“If the Congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the Congress loses,” said Gingrich. “The founding fathers designed the Constitution very specifically in a Montesquieu spirit of the laws to have a balance of power — not to have a dictatorship by any one of the three branches.” . . .

Gingrich conceded today that a number of legal experts would not necessarily be comfortable with his take on the separation of power within the American government. But, he says, that’s the point.

“I think many lawyers will find this a very frightening idea,” he said. “They’ve had this run of 50 years of pretending judges are supreme, that they can’t be challenged. The lawyer class defines America. We’ve had rulings that outlawed school prayer, we’ve had rulings that outlawed the cross, we’ve had rulings the outlawed the 10 Commandments, we’ve had a steady secular drive to radicalize this country away from all of its core beliefs.”

Here’s a bit of a rant by Les Francis over at FrumForum:

Because of Marbury, the federal judiciary is the recognized and essential referee when something has to be called in or out of constitutional bounds. As a democratic society we’ve gone along with that system for a very good reason: Someone has to have a whistle and a yellow flag, and the accompanying authority and respect to make the calls stick. Presidents must accept the Courts’ decisions, as must Congress, as must we all. We don’t give the loudest or most shrill people in the stadium the power to reverse the ref’s verdict. Nor do we turn to Gallup, Roper, or Harris to make the call.

We can disagree with the Court’s decisions, and have, from Marbury, to Dred Scott, to Roe vs. Wade and Bush v. Gore—and thousands in between and since. But we obey and respect them because the alternative is chaos and, for some, grievous injustice.

So when Mr. Gingrich rails against “activist” or “elitist” judges, or when he accuses the judiciary of being dominated by “un-American” values, we might reasonably conclude that the former Speaker is a somewhat unhinged and dangerous demagogue, rather than merely an objective (non-lobbying but high priced) historian. On the other hand, if his statements are an accurate reflection of Mr. Gingrich’s knowledge and understanding of American history, maybe Freddie Mac should seek a refund.

I’m not going to defend his comments, but I kind of find the outside-of-the-box thinking to be healthy, even if only to reaffirm the merits of our current system of judicial review.  Gingrich is hardly the first to use the “activist” or “elitist” labels; these are among the favorite jabs used by conservative thinkers, often by those sitting on the federal bench itself.  And there are legal scholars out there who support abolishing judicial review on the theory that a nine-person Supreme Court is no better at protecting rights than democratic legislatures, and that the process itself is antithetical to democracy (which, of course, America technically is not).

Abolishing judicial review would seemingly create a de facto two out of three system, though it would not involve the Supreme Court: bicameralism and presentment would be the only option in such a scenario.  But an actual two out of three system?  There are a million questions I could ask, but one that comes to mind is what would a two out of three situation with the Supreme Court and the President look like?  Who would write the law?  In reality, judicial review of federal laws, like we have today, inherently involves a two out of three situation — laws challenged in the courts have already been passed by both houses of Congress and signed by the President.  The only thing is that the Supreme Court can effectively veto it.

This could all be debated and discussed forever.  But I like the fact that something as nerdy as judicial review is in the news.

But I’m also starting to place a bigger premium on a particular benefit of originalism: the benefit of progressing democratically.  The practice of striking down democratically passed laws is, to me, the most problematic aspect of judicial activism.  As I mention in the posts linked above, opponents of originalism erroneously conflate the theory with “no progress.”  But by refusing to articulate new and non-existing rights in the Constitution, the Court would promote that same progress through democratic processes.  I very much prefer slow and democratic progress (assuming I’m for the substantive result) to quick and judge-made progress through incorrect interpretations of the Constitution.  But, more to the point, I almost have a general preference for any democratic law to any alternative articulation by the Supreme Court if it involves striking down that law.

Mark Tushnet wrote a book a couple of years ago called Weak Courts, Strong Rights, of which I’ve only read a snippet.  He proposes a “weak-form judicial review,” which “respects the right . . . for majorities to prevail when, acting through their representatives, they enact statutes that are consistent with reasonable interpretations of the constitution even if those interpretations differ from those the courts offer.”  Considering that the power of judicial review is mentioned nowhere in the Constitution, much less the ultra-powerful version exercised by federal courts today, there is no constitutional problem with this kind of review, putting aside the whole “it is emphatically the province of the judicial branch to say what the law is” thing articulated in Marbury v. Madison.

Such an interpretation has several benefits.  First, it encourages democracy even more than an originalism that invalidates laws in the name of original intent.  Second, it wouldn’t hinder federal, state and local governments’ pursuit of legitimate policy objectives.  Take the three cases mentioned in the previous two posts as examples.  Should the Second Amendment  suddenly prohibit a crime-ridden city from regulating and banning certain fire-arms, considering that the law had been on the books for over 30 years — even if the Second Amendment protects an individual right?  Should the Fourteenth Amendment prohibit using race to integrate schools, when the purpose of such integration — and the Fourteenth Amendment itself — is/was to help disadvantaged African Americans?  Should the First Amendment’s guarantee of free speech prohibit the government from banning particular corporate campaign expenditures when the overriding purpose is to preserve the integrity of our basic political process and to prevent rich speech from drowning out poor speech?

Regardless of where one comes down on what the Constitution mandates in these instances, I find an interpretation of the particular constitutional provisions that permits these types of policy preferences to be entirely reasonable. Crime-prevention, diversity/integration, and preventing corruption are all compelling justifications for the laws at issue in those cases, and, putting aside the Court’s strict scrutiny jurisprudence, would seem to pass a reasonableness test.

A third benefit of this approach is that it would seem to lessen the likelihood of politically motivated decisions cloaked in legal justification.  It would be more difficult for an activist judge to implement an alternative policy from the bench if the law merely had to represent a reasonable interpretation of the Constitution.  This would also create a truer version of political accountability, as the populace is not free to overturn a Supreme Court decision with which it disagrees, absent a constitutional amendment.

Clearly this isn’t the way our Constitutional system works at the present.  And I’m not even entirely convinced that it’s a better method.  But I can’t help but be sympathetic to a form of judicial review that tends to defer to democratically passed laws as opposed to one that permits judges to permanently prohibit a particular brand of policy by striking down such laws — regardless of whether the decision is originalist or not.  Under this type of analysis, all of the cases we’ve discussed — including Roe and Lawrence – may have been wrongly decided.

The original precedent in a line of precedents could not have been based on precedent.  At the origin of the line must be something else.  It might well be a policy judgment or, what often will amount to the same thing, the interpretation of a vague statute or vague constitutional provision – and the policy judgment or the policy-laden interpretation might well be determined by ideology.

Not only is the foregoing true, but it seems especially so with regard to Marbury – arguably the most important legal decision in American history.  The opinion that gave the federal judiciary its most consequential power is founded not upon the text of the Constitution but upon Marshal’s preconceptions; perhaps his beliefs in a strong federal government, a strong federal judiciary, and a system of checks and balances.  So one can certainly argue that “the rule of law” (or a “government of laws not men”) had immensely significant exceptions, even from the onset.  We should recognize this regardless of whether we think judicial review is a good thing.  And proponents of judicial review should at least recognize its drawbacks.   After all, Marbury may have been the seed that was responsible for the Supreme Court becoming the largely political institution that it is today.  Without the enormous power of judicial review and the exclusive voice of constitutionality, the Court would be stripped of almost all of its political utility.

Most people probably remember the concepts of separation of powers and checks and balances from middle school social studies.  I remember learning that the genius of the American idea was to implement the tripartite system of government: the legislative branch makes the laws, the executive branch executes the laws, and the judicial branch interprets the laws.  Fortunately for us back then, we pretty much just had to memorize which branch did what and guess appropriately on a multiple choice question to demonstrate our knowledge of how the government works.

Yet, most people take for granted the idea that one of the Supreme Court’s jobs is to determine whether what the executive and legislative branches do are consistent with the Constitution.  This is perhaps the most crucial component to checks and balances, as an independent judiciary that can keep the federal government within its rightful bounds is essential if government is to be truly limited.  But many might be unaware that this fundamental check is nowhere in the United States Constitution.  Its existence stems not from our constitutional text but from arguably the greatest power grab in American history – the Supreme Court’s 1803 decision in Marbury v. Madison.

Article III of the Constitution articulates “the judicial power of the United States” by vesting it in “one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.”  But the remainder of Article III is primarily devoted to carefully articulating those classes of cases that the American judicial power as a whole can hear.  In all, a list of 9 categories of cases is given, over which 3 the Court is to have original jurisdiction (meaning that the case goes directly to the Supreme Court) and the other 6 appellate jurisdiction (meaning the power to hear the case on appeal only).  The primary purpose of this is to ensure that the federal court system would be the exception rather than the rule.  In other words, state courts are designed to be courts of general jurisdiction and can hear any types of cases but the federal courts are only to hear certain and limited categories of cases.

After the Constitution was ratified, Congress, pursuant to Article III, immediately passed the Judiciary Act of 1789 which created a lower federal court system.  The Act also gave the Supreme Court an additional category of cases over which it was to have original jurisdiction – petitions for writs of mandamus (a petition for a writ of mandamus is basically asking the court to compel a lower court or public official to act in accordance with the law when they have failed to do so).  This category was not one of the 3 articulated categories in the Constitution over which the Court was to have original jurisdiction.

Enter Chief Justice John Marshall and Marbury v. Madison. The Court was faced with a fundamental conflict: the Constitution said one thing and Congress said something else.  Who was right?  More importantly, who was to decide who was right?

Marshall authoritatively answered both of these questions.  He concluded that, since the Constitution provided an exhaustive list of cases over which the Court could exercise original jurisdiction, Congress had impermissibly added petitions for writs of mandamus to that list.  It essentially had given the Court more power than it had the right to.  So, by saying that Congress was wrong to give the Court additional power, Marshall actually seized even more power for the Court – the ability to say that what Congress does is inconsistent with the Constitution and thus void.  It is this decision alone that is the source of the Court’s power to strike down government action as unconstitutional – a.k.a. judicial review.  Again, nothing in the Constitution says that the Court can do this.

Marshall justified the decision by writing, “It is emphatically the province and duty of the judicial department to say what the law is.”  But why is it the Supreme Court’s duty to strike down laws it determines to be unconstitutional?  Why can’t Congress decide whether the laws it passes are constitutional and the Court just apply those laws to particular disputes?  Is the Supreme Court institutionally stronger to determine a law’s constitutionality or is Congress just as capable?

The answer to these questions are likely very much ingrained in our understanding of checks and balances.  Perhaps it’s hard to imagine a Supreme Court without this historic power of judicial review.  But there is, and has long been, a movement to abolish judicial review and to give Congress (and the President as signor) the final word on the constitutionality of their own laws.  There are, after all, 535 members of Congress and the process through which a bill becomes law includes a vote by each of these representatives who are elected by and accountable to the people.  Moreover,  the President, speaking for the executive branch, must sign a bill into law (unless he vetoes it and is then overridden by Congress), so a law is generally decided by two out of the three branches of the federal government.

Does it bother anybody that 9 unelected, life-tenured judges have the power to strike down laws that are passed by our elected representatives?  There certainly are a ton of good answers to this question but it nonetheless seems like a conversation worth having.