“If the Constitution is the source of governmental power, and the judiciary interprets the Constitution, then the judiciary is the most powerful branch of government” Discuss
In answering this question I will first paint a picture of the power that the court holds, and decide whether this is governmental power. Then I will outline the balances that the court must maintain in its decision making and therefore the checks on its actions as an institution that governs America.
“Scarcely any political question arises that is not resolved sooner or later into a judicial question." (Alexis de Tocqueville Democracy in America)
If we take Tocqueville on his word then the American Judiciary truly is in a powerful position. The reason for much of this power is the principle of judicial review of the actions of the executive and legislative branches of government at both state and federal level against a written constitution and the power therefore to ‘interpret’ the constitution. The power of judicial review over the states is laid down in the supremacy clause of article III and the power of judicial review over the other two branches of the federal government is implied in the constitution and by several but by no means all of the founding fathers:
“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.” (Hamilton federalist no. 78)
Judicial Review was also a common practice in many states before 1803 but it was not until Marbury v Madison in that year that the doctrine of judicial review was established in constitutional convention. Of significance here is the outcome of the case – Marshall in the most important of all opinions ruled that Marbury should receive his commission. It should be noted at this point, and returned to later, that congress is given control over the jurisdiction of the Supreme Court. In the 1789 Judiciary act congress had legislated that, under article 13, writs of mandamus were unconstitutional. This therefore meant that the case (that had been brought straight top the Supreme Court) was not in fact under its original jurisdiction. By Striking down this portion of the Judiciary act Marshall set in stone the principle that the judiciary had the power to review the actions of the executive and Acts of Congress. In the History of the court there have been some 130 Acts of Congress and some 1,058 state statutes struck down.(Figures Barnum The Supreme Court and American Democracy) This points to a powerful if not the most powerful branch of government.
When reviewing Acts of congress or the actions of the executive against the constitution there comes an inevitable need to ‘interpret’ the constitution. The need arises from the Fact that although there are some very specific rights and powers laid down in the constitution (the third amendment is often cited) there are also what Dworkin refers to as “abstract moral principles” (Dworkin Freedom’s Law p7) such as the provision in the fourteenth amendment for “equal protection of the law” or “due process” in the fifth amendment. These clauses have to be ‘converted’ into practice, and this is the remit of the Supreme Court. This has led some to draw a distinction between enumerated and unenumerated rights in the constitution. Robert Bork for example claims that ruling in favour of unenumerated rights the court is overstepping its mark which is that of enforcing the constitution. Dworkin
The fact that the court is not merely following a strict script set down by the ‘intentions of the framers’ but is applying the broad moral principles they laid out in a modern understanding of what they entail gives the court enormous power.