A constitutionalist take on judicial review

A reader asked in an unrelated thread if I, as a constitutionalist, believe in judicial review. It's a good question, worth its own thread, so I'll answer here.

Do I believe in judicial review? I haven't given the matter enough detailed attention, but my shoot-from-the-hip response is: Sort of.

The power of the federal judiciary, enumerated in Article III, Section 2 of the Constitution, is as follows:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI]; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Amendment XI reads thus:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

That's it. We see here what is intended to be an exhaustive listing of the types of "cases" and "controversies" which may be heard by the federal courts. I see nothing here beyond a grant of power to judge between the parties in such a case or controversy: Party A is correct, Party B is incorrect.

I see no specific grant of power to nullify an act of Congress (which is the meaning of judicial review). However, such a power seems to be implied in the above text, a fact which is admitted by Hamilton in Federalist #81. In answer to this, Hamilton expresses what is in hindsight naive optimism that an independent judiciary poses no real threat to the legislature:

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.

So, it appears that the power of judicial review is constitutional, but that it is currently warped beyond the Founders' vision (as is just about everything in modern government). First, the legislature does not appear willing to use its check on judicial usurpation— namely, the power of impeachment. This has the effect of emboldening justices to judge according to personal fancies rather than according to the principles of the Constitution. Second, the judiciary is used as a weapon by factions within the legislature who are unable to muster a majority for their initiatives. Third, there is now an unspoken assumption that the courts will "fix" bad laws, leading to the passage of countless bad laws.

Considering all of this, it seems to me that judicial review is not the problem. The problem lies in a legislature that abandoned fealty to the Constitution long ago, and that directly and indirectly led the judiciary away from the Constitution as well. All branches of the government bear the blame for the current state of things, but nothing will change until Congress starts insisting on good (i.e. Constitutional) behavior by the other two branches. Congress will not change until the people start insisting on good behavior by their elected representatives and senators. How will the people be motivated to good behavior?


Thoughts?