Against Judicial Supremacy: The Founders and the Limits on the Courts
Bottom Line: Professor Carson Holloway argues that a close reading of The Federalist shows that while Alexander Hamilton and James Madison affirmed the concept of judicial review, they neither affirmed the idea of a “living constitution” nor the currently popular idea that the Supreme Court is the final arbiter of the meaning of the Constitution.
Professor Carson Holloway argues that the modern understanding of judicial review – the power the courts have to interpret the U.S. Constitution under Article III – is far more expansive than it was originally conceived of by James Madison and Alexander Hamilton.
A study of The Federalist reveals that judicial review is nothing more than the inherent power the courts have under the Constitution to ensure that the laws passed by the states or the federal government are in compliance with the U.S. Constitution. Holloway explains that in Alexander Hamilton’s understanding, the power of judicial review would be used only sparingly in cases where it was absolutely necessary – it was not to be used in a free-wheeling way to strike down any law with which a judge disagreed.
Moreover, Hamilton and James Madison thought that adherence to republican principles demanded that judges leave the work of legislating to the people’s representatives. Hamilton considered it to be a usurpation of a judge’s constitutional duty to legislate from the bench rather than deciding specific cases that come before the courts.
Finally, the popular idea of judicial supremacy that presidents in both parties have espoused – the claim that outside of a constitutional amendment, the Supreme Court has the final say over constitutional interpretation – is incompatible with the principles of republican self-government. Both Madison and Hamilton, and later Andrew Jackson and Abraham Lincoln among others, argued that the officers of each branch of government are sworn to uphold the Constitution as they understand it, with the people sovereign over all branches, a view known as departmentalism. The American people have elections and other means at their disposal to ensure that the United States does not become ruled by a panel of judges.
Read the full essay here.