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Judicial Review & Marbury vs. Madison

F. Earle Fox

Click on title URL -- for an article on the case which generated the tragic move toward Judicial Review, the authority of the Supreme Court unilaterally to decide what the Constitution means.  So far as I can figure, the Court granted itself that authority, it did not ask the people, or either of the other two branches of government, whether it had such sole authority.   

It was fairly innocuous until Justice Oliver Wendell  Holmes et al invented "positivist" law, law unsupported by, or obligated to, any law higher than itself.  That meant that the Court itself was obligated to no law higher than itself. 

Positive law was the study only of those statutes which had been made in the past, with no reference to Natural Law, the Law of God, or any such higher law.  Given that demise of any authority over the Supreme Court, the authority of the people was bound to be trashed, and so it has been.  As one Justice remarked, "The Constitution means what the Supreme Court says it means."  What is the difference between that and tyranny?  

Judicial review under the law and grace of God might have been quite a different thing.  Still, there has to be some way reasonably to limit the power of the Court, to keep it from becoming the oligarchy which it has become.

The only reasonable way is to make the Legislature the highest of the three branches.  Because it is the closest to the people, who are the Primary Officers of the State, the Legislature should be the final determiner of the meaning of the Constitution, or perhaps a three-way vote between the branches of government.  It is the highest, in fact, because it can discipline the judges, remove most of the courts from existence, and limit the jurisdiction of the Supreme Court.  But the Legislature, almost everywhere, lacks wisdom and will -- an exact reflection of the people whom they represent.   We get what we ask for. 

Only a spiritual renewal, a resurgence of Biblical principle among Americans, can turn the matter around.  The beginning principle is the sturdy battle cry of the early Christians:  "Jesus is Lord!"; or of the Presbyterians during the War for Independence, "No king but Jesus!"   Both are political claims, not merely personal and "spiritual".   They asserted authority over all civil government.   

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Date Posted -  --/--/2008   -   Date Last Edited - 09/15/2012