The original scope of the power of US federal judicial review?

Futurist

Ad Honoris
May 2014
22,281
SoCal
What was the original scope of the power of US federal judicial review? In his 1977 book Government by Judiciary, US legal scholar Raoul Berger argued that the original scope of the judicial review power on the US federal level was to police constitutional boundaries but was not broad enough to actually rewrite the US Constitution--including through interpretation by interpreting a particular constitutional provision contrary to its original intent. Here's Berger's book, if you're curious:

https://oll.libertyfund.org/titles/berger-government-by-judiciary-the-transformation-of-the-fourteenth-amendment

Berger's conclusions were challenged to some extent by H. Jefferson Powell (and Berger did subsequently respond to Powell's arguments and argued that the evidence still points in his rather than Powell's direction), but later research by Robert Natelson appears to indicate that Berger's view was closer to being correct than Powell's view was:

The Founders' Hermeneutic: The Real Original Understanding of Original Intent by Robert G. Natelson :: SSRN

What are your thoughts on this? Based on any research that you did and/or anything that you have read, do you think that Raoul Berger was correct in regards to the original scope of the power of US federal judicial review? Or do you think that the original scope of this power was broader and that the Founding Fathers also intended for the US judiciary to be able to rewrite the US Constitution--especially under the guise of interpretation?
 

betgo

Ad Honorem
Jul 2011
6,438
They didn't intend that the Supreme Court could revise the Constitution. They may have intended it to be able to rule legislation unconstitutional, but they certainly did not intend it to have the role it has now or under activist courts. Justice Marshall expanded the Supreme Court's role in Marbury v Madison. It was later expanded. In most of the colonies there was a Governor's Council of 6-12 men, generally appointed for life by the colonial governor. It was the upper house of the legislature, and also a state supreme court. I think the US Supreme Court was modeled on that.
 
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Futurist

Ad Honoris
May 2014
22,281
SoCal
They didn't intend that the Supreme Court could revise the Constitution. They may have intended it to be able to rule legislation unconstitutional, but they certainly did not intend it to have the role it has now or under activist courts. Justice Marshall expanded the Supreme Court's role in Marbury v Madison. It was later expanded. In most of the colonies there was a Governor's Council of 6-12 men, generally appointed for life by the colonial governor. It was the upper house of the legislature, and also a state supreme court. I think the US Supreme Court was modeled on that.
Interesting. How much power did the Governor's Council have?

Also, Alexander Hamilton talked about in Federalist Paper No. 78 about how the US federal judiciary can strike down statutes that are at an irreconcilable variance with the US Constitution. Irreconcilable variance, of course, means that a statute is clearly unconstitutional rather than only debatably so. Of course, Raoul Berger argued that the US federal judiciary (and possibly US state judiciaries as well, though he doesn't talk about them) was intended to be bound by original intent and that the Founding Generation would have viewed any deviation from original intent as being equivalent to a judicial rewriting of the US Constitution--which Berger argues they would have been unwilling to accept considering that they rejected giving the judiciary a legislative role.
 

betgo

Ad Honorem
Jul 2011
6,438
The Governor's Council's were like the state senate and state supreme court combined. They had tremendous power. However, the royal governors generally appointed them, and could raise someone's power, wealth, and social standing that way. I think in some colonies in later times, they were appointed by their own members or by the elected lower house.

I don't think anyone envisioned the Supreme Court making law the way it did in the 1950s-70s. Also, all the overturning of child labor laws and so on in the early 20th century in sort of questionable.

Much of the objections to the Constitution centered on the powers of the President and the federal courts though.
 
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Jun 2017
12
Marblehead, MA
It was never the Framers intent to allow the Supreme Court to revise the Constitution. That could be done only through the amendment process. My disagreement with Raol Berger is with his assertion that the Constitution is rewritten when we interpret a provision contrary to original intent. I would submit that we are often times not certain of what was the original intent. The legislative branch has allowed the Court too much power. They look to the Court to make law rather than review law. In Griswold v Connecticut (1965) the Court established the implied right to privacy by striking down a Connecticut law prohibiting the distribution of birth control within the state. While can agree with the 7-2 decision, there is something to be said for the 2 dissenters Justices Black and Stewart. In their dissent they referred to the law as "silly" but the remedy was for the legislature to change the law , not the courts.
 
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Futurist

Ad Honoris
May 2014
22,281
SoCal
It was never the Framers intent to allow the Supreme Court to revise the Constitution. That could be done only through the amendment process. My disagreement with Raol Berger is with his assertion that the Constitution is rewritten when we interpret a provision contrary to original intent. I would submit that we are often times not certain of what was the original intent. The legislative branch has allowed the Court too much power. They look to the Court to make law rather than review law. In Griswold v Connecticut (1965) the Court established the implied right to privacy by striking down a Connecticut law prohibiting the distribution of birth control within the state. While can agree with the 7-2 decision, there is something to be said for the 2 dissenters Justices Black and Stewart. In their dissent they referred to the law as "silly" but the remedy was for the legislature to change the law , not the courts.
I don't think that Raoul Berger ever denied that the original intent can be vague. What he objected to was the US Supreme Court ignoring original intent when original intent is clear or at least relatively clear. Berger argued that the original intent is clear in regards to the decision of the draftsmen of the 14th Amendment to leave the issues of jury service, school segregation, anti-miscegenation laws, and suffrage to the states and that thus Strauder v. West Virginia, Brown v. Board of Education, Loving v. Virginia, and the "one person, one vote" cases such as Reynolds v. Sims were all wrongly decided. Berger never denied that great evils existed; rather, what he denied was that the US Supreme Court actually has the authority to get rid of these evils. He believed that these evils should be eliminated through new constitutional amendments instead.
 
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Jun 2017
12
Marblehead, MA
But the 14th Amendment has never been fully incorporated. The issue I have is the Amendment process as difficult as it may be is the most legitimate means by which to change the Constitution and the legislative branch should fully exercise their enumerated power (there are 10 sections to Article I) instead of relying on the Court. You have brought up a very interesting topic.
 

Futurist

Ad Honoris
May 2014
22,281
SoCal
But the 14th Amendment has never been fully incorporated.
What do you mean by this?

The issue I have is the Amendment process as difficult as it may be is the most legitimate means by which to change the Constitution and the legislative branch should fully exercise their enumerated power (there are 10 sections to Article I) instead of relying on the Court. You have brought up a very interesting topic.
Yeah, the US Constitution gives the US Congress certain powers while denying them certain other powers. To be honest, though, I'm not sure that Berger would have actually agreed that the US Congress actually has the authority to do things such as abolish school segregation, abolish anti-miscegenation laws, and impose a "one person, one vote" doctrine onto US states. Berger argued that these issues were state issues and that the 14th Amendment was not intended to remove these issues from the control of the states.

As for the constitutional amendment process, the Founding Fathers made it hard because they presumably wanted there to be a huge consensus on a particular issue before a particular viewpoint on this issue was imposed throughout the entire US. US states had a lot of discretion to act as they pleased, but if one wanted a particular policy to affect the entire nation, the Founding Fathers believed that one should actually acquire a huge consensus before one is actually able to do this.
 
Jun 2017
12
Marblehead, MA
Sorry, meant to say it appears that Berger would argue for selective incorporation. In Palko v CT Justice Cardozo argued that Due Process Clause protected only those rights that were "of the very essence of a scheme of ordered liberty" and that the court should therefore incorporate the Bill of Rights onto the States gradually, on a case by case basis. Justice White maintained that the Fourteenth Amendment incorporates certain fundamental provisions, but not other non-fundamental provisions. However, today, I believe the Court would largely support total incorporation of the 14th Amendment and Congress would have the legislative authority to pass laws regarding issues such as school segregation, etc.
 
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Futurist

Ad Honoris
May 2014
22,281
SoCal
Sorry, meant to say it appears that Berger would argue for selective incorporation. In Palko v CT Justice Cardozo argued that Due Process Clause protected only those rights that were "of the very essence of a scheme of ordered liberty" and that the court should therefore incorporate the Bill of Rights onto the States gradually, on a case by case basis. Justice White maintained that the Fourteenth Amendment incorporates certain fundamental provisions, but not other non-fundamental provisions. However, today, I believe the Court would largely support total incorporation of the 14th Amendment and Congress would have the legislative authority to pass laws regarding issues such as school segregation, etc.
How exactly does the Bill of Rights apply to school segregation, though?