Review of Chapter 6 of Rule of Law: the judicial review fallacy

Happy Presidents Day Weekend! Thus far, I have reviewed the first five chapters of Thomas Bingham’s Rule of Law, and along the way I have identified some serious flaws in Judge Bingham’s book, such as the circularity of the equality principle (see here), the problem of hard cases (here), and the existence of vague or conflicting laws (here). Today, I will call Bingham out for a logical fallacy that he makes in Chapter 6 of his work, which is titled “The Exercise of Power.” To the point, Bingham begins this chapter by stating that public officials should exercise their powers reasonably and in good faith and “without exceeding the limits of such powers,” but this statement begs the question: Who decides? Specifically, who decides whether a public official has exceeded his powers? Who decides what is reasonable? For Bingham, the courts decide these questions. Citing the well-established principle of judicial review, Bingham tells us that it is “the courts [who] enforce compliance by public authorities …”

But how sound is this principle? In summary, the logic of judicial review in constitutional cases can be restated as a syllogism as follows:

  • Premise #1: A country’s “constitution” is its fundamental law.
  • Premise #2: One of the purposes of a constitution is to set limits on political power.
  • Premise #3: All government officials (including the judges themselves) must obey the constitution.
  • Conclusion: When a public official violates the constitution, the courts have the implicit power of judicial review, i.e. the courts can declare the official’s act unconstitutional.

Alas, although this logic appears sound on paper, judicial review has more bark than bite in the U.S. context. One problem arises when we imply that judges have the exclusive or supreme power to enforce the constitution. In reality, however, in a federal system of government like ours, consisting of three co-equal branches, all public officials play a vital role in constitutional interpretation. President Andrew Jackson, for example, famously vetoed a bill re-authorizing the charter of the national bank–a measure that the Supreme Court had already upheld in McCulloch v. Maryland–because Jackson thought the national bank was unconstitutional.

Another problem is that the U.S. Constitution contains many general provisions that are open to multiple interpretations. (Compare the problem of hard cases, which I discussed in a previous post.) Take the Second Amendment, for instance, which protects the right to bear arms. Can Congress require gun owners to buy liability insurance, or would such a mandate violate the Second Amendment? Or what about the First Amendment, which forbids the Congress from enacting any law abridging the freedom of speech. Why doesn’t this provision prohibit Congress from making perjury a crime? It is thus not always obvious when a public official is exceeding the limits of his power.

But the most serious problem with judicial review, especially the erroneous view that judges have the last word as to the meaning of the constitution, is that courts have very limited enforcement powers in practice in high-profile constitutional cases. When the person or entity who is allegedly violating the constitution is the president or prime minister or parliament, does a court really have the power to order the president’s arrest or the arrest of a majority of the members of parliament? No court possesses this power as a matter of fact. Judicial review’s bark is often bigger than its bite!

The best example of point #3 is the most famous Supreme Court case of all time: Brown v. Board of Education. In that case, the Supreme Court decided to nullify the policies of four local school districts by declaring segregation on the basis of race to be unconstitutional. And, yet, over three-quarters of a century later, most public schools are still racially segregated.

Too late!

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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