The Doctrine of Judicial Review
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difference, in other words, between constituent assemblies, such as those
which frame and ratify a constitution, and legislative assemblies, which
simply make the laws. Judicial review, it has been argued, is ‘‘undemocratic’’ because it permits unelected judges to nullify the decisions of
elected representatives. This would be true only if the nullified statute
was clearly constitutional. But to insist that the exercise of judicial review, as such, is undemocratic is to ignore the democratic foundation of
the Constitution itself, which speaks in the name of ‘‘We the People’’ and
is meant by the people—past as well as present and future generations—
to be preferred to the wishes of their agents, who are but a fleeting reflection of current opinion and in many instances may be speaking only for
themselves.
Thus understood, the true and permanent will of the American people
is expressed in the Constitution. This is an unwritten assumption, applicable to each generation of Americans, until they deliberately and consciously cast it aside or amend it. It is an everlasting commitment by the
people to self-restraint and to the restraint of government. By the word
‘‘people,’’ then, Hamilton did not mean a collection of voters at any given
time or place. He meant the American people in historical continuity. It
is their will that they be governed by their Constitution which is written
in their name and was adopted by their ancestors. This is not to say that
they are to be ruled from the grave, but merely to observe that they have
chosen to impose limitations on their autonomy, and to be governed ultimately not by politicians or judges, but by a higher law we call the Constitution of the United States of America. The practice of judicial review,
it may thus be argued, runs counter to democratic principles when a
judge ignores the Constitution or allows an unconstitutional statute to
stand, not when he defends the Constitution against legislative assault.
In Marbury v. Madison, Chief Justice Marshall reasoned, in a brilliant
display of deductive logic, that judicial review is a constitutional imperative. ‘‘The question, whether an act repugnant to the Constitution, can
become the law of the land,’’ he stated, ‘‘is a question deeply interesting
to the United States.’’ Marshall began by pointing out that certain fundamental principles of the constitutional system seem to warrant judicial
review. The people had united to establish a government. They organized it into three departments and assigned certain powers to each,