At Dorf on Law, Eric Segall: Judicial Review, the Supreme Court, and a Possible Constitutional Apocalypse. From the introduction:
Alexander Hamilton explained in Federalist No. 78 the rationale for the Founding Fathers giving judges the power to strike down laws enacted by the legislature. He said the following:
The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that 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.
What Hamilton did not anticipate was that much of the Constitution's imprecise language, such as the text of the First and Second Amendments, would be applied by future judges to a constantly changing society. He likely thought the very heavy burden of proof he was placing on those challenging laws (plaintiffs must show an irreconcilable variance between a statute and the Constitution) would keep judges in their place. But, of course, he was wrong, and starting in 1857 with the infamous Dred Scott decision, the justices have been striking down laws at a rate and in important cases in ways that few Founding Fathers, especially Hamilton, anticipated.
In most of these cases, the Court is not acting as an agent of the people or the enforcer of a supreme law, but the creator of constitutional rights and limits that simply do not follow from the constitutional text or its history. Dred Scott, The Civil Rights Cases, Lochner, Reynolds v. Sims, Roe, Heller, Shelby County, Seila Law, Trinity Lutheran, Bruen, and SFFA v. Harvard are just a few examples of many country-changing decisions where there is no available argument that the laws invalidated were at an "irreconcilable variance" with the Constitution. Liberal, conservative, and moderate justices have all invalidated major legislation without serious and persuasive grounding in the text or history of the Constitution. …
Like many of Professor Segall's posts, I think this one has truth to it, but then goes too far.
I agree that "irreconcilable variance" is the right standard. And so I agree that in cases where the original meaning of the Constitution is unclear, courts have no authority to intervene against the political branches (leaving aside precedent). And I think that modern courts have commonly overstepped their authority. But I don't think that the "irreconcilable variance" standard is defeated whenever government lawyers can make a plausible argument. Rather, the question for the judge is whether, in the judge's best assessment, the conflict between government action and the Constitution's original meaning is irreconcilable. Otherwise, the Constitution is not really a check on government, and the government becomes the judge of its own cause (as Hamilton also expressed in Federalist 78). Rather, as Hamilton also said in Federalist 78, "the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments."
Posted at 6:10 AM