NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper role of the judiciary. Today’s episode features Professor Randy E. Barnett, who is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. He teaches constitutional law and contracts, and is Director of the Georgetown Center for the Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - PUBLIUS: How is judicial review implicit in the judicial power? Today we’re talking with Professor Randy Barnett about how the Founders understood judicial review and how the concept evolved as a justification for judicial supremacy. What exactly is the proper Constitutional role of the courts? RANDY BARNETT: All judicial power is resided in the judicial branch. This puts a premium on knowing what was the original conception of the judicial power, what was included within the judicial power. And included in the judicial power was what we today call judicial review. It wasn't called judicial review back then, even then it was considered to simply be the duty of a judge to follow the law. And that meant following the higher law provided by the Constitution when it conflicted with any inferior laws or lower laws that would be provided, for example, by an act of congress or by a law that was enacted by a state. The judiciary had the power to adjudicate cases and controversies between individual parties, and that meant it had ability to decide disputes that came before it. The judiciary was not given some kind of supreme power over all the other branches of government to direct that they do this, that, or the other thing. Rather, that when a case came before the judicial branch that was for example depends on a law that was passed by congress then the judicial branch would have no choice but to ascertain whether that law was consistent with the powers of congress before it could be imposed on the people. The constitution only specifies that there be a supreme court, and basically only specifies that there be a chief justice of the supreme court. The rest of the courts are, what the constitution would refer to as inferior courts, are a product of legislation passed by congress and signed by the president. So it is the various judiciary acts that congress has passed since the founding of the country. It's the various judiciary acts that congress has passed since the founding of the country that comprise and constitute the lower courts. Indeed, it is an act of congress that decides how many justices there should be on the supreme court. That's also not specified in the constitution. Nine justices is what we have now, it's what we've had for quite a while, but we've had as few as six justices authorized, which is what it was in the beginning, and as many as 10 justices that have been authorized by congress. So congress not only constitutes the lower courts, it actually also constitutes the size of the supreme court itself. PUBLIUS: Can you tell us more about judicial review? What is it? Where did it come from? And why is it sometimes criticized? RANDY BARNETT: The term "judicial review" is nowhere in the constitution, and it isn't really to be found at the founding. In fact, the term judicial review doesn't come into common usage until the 20th century, and it's about that time that Marbury versus Madison assumes its significance as a supposedly great constitutional case. Marbury versus Madison simply adopts the view that Alexander Hamilton articulated in Federalist 78, and that is the judges had the duty to follow the higher law when it conflict with a lower law like a statute. The higher law is the constitutional, lower law is the statute. There are many cases before Marbury in which the Supreme Court assumed that in a conflict between the higher law of the constitution and a statute, a statute would be null and void if it conflicted with that higher law. Marbury versus Madison simply represents the first time it finally held that a federal statute did in fact exceed the powers of Congress, and therefore was unconstitutional and void. It was simply the first occasion on which that power was used. It was not the first time that power had been recognized by the Supreme Court. The idea that Marbury versus Madison invented the power of judicial review came about in the 20th century, when people were trying to illegitimate the power that were exercised by the Supreme Court to invalidate, at the time, progressive legislation. It was then when it was asserted that this was a power that had been invented by John Marshall. . . Marbury has sometimes been used to justify what's called judicial supremacy, and that's the idea that the Supreme Court is somehow above all of the other branches of government when it interprets the constitution when in fact, what the judicial power is is the power to decide cases and controversies that come before the court. When a case comes before the court and a conflict exists between the constitution and, let's say, a statute, the Supreme Court has no choice but to follow the higher law of the constitution. That is its duty, to follow the law. This does not mean that the Supreme Court's opinions in which they justify their outcomes, the decisions that they make, need to be followed by all of the other branches of government as though they were a statute unto themselves. What needs to be respected is the judgements of the Supreme Court. When they finally decide a case, the other branches of government respect the judgements of the Supreme Court, but that's not the same thing as adhering to the opinions of the justices when they justify their judgements. Those opinions are, in fact, the opinions of the Supreme Court. They're helpful to predict what a future Supreme Court will do, and other constitutional are going to want to know that. But even Supreme Court justices themselves don't follow all the previous opinions of ... their own opinions, or the opinions of their predecessors when they're deciding a case, and neither do other branches of government need to follow every jot and tittle of an opinion of the Supreme Court. PUBLIUS: Doesn’t judicial review lead to too much power for judges to rule based on their policy preferences instead of the Constitution? What is the debate here? RANDY BARNETT: There are those who criticize the power of judicial review, which is really the duty of judges to follow the law, because it seems to put the judiciary above the other branches of government. But that, in fact, is a misconception of how the separation of powers work. If congress decides that a particular action is beyond its constitutional powers to enact it doesn't have to pass a law. And if it refuses to pass a law because it's beyond its powers to enact a law the other branches don't get a say in that. That's congress's decision solely. If congress decides a particular action is within its powers only then will it get passed over to the executive branch for the president to decide whether he or she agrees whether such a power is within the power of congress. If the president says yes, and only if the president says yes, will the matter then go to the judiciary. Alternatively, if the president says no a super majority of congress can override that presidential veto and then it will go to the judiciary. So therefore, only if a super majority of the legislature thinks a measure is constitutional, or a combination of the legislature and the president thinks a measure is constitutional, only in that case will the judiciary have any say whatsoever. And under our system, essentially all three branches of government must concur that a measure is constitutional before it can be imposed on us, we the people. And this is an ultimate check on the power of the government as a whole, that all three branches must concur. This does not make the judiciary a superior branch, what this makes is the judiciary is an equal branch. So it has an equal say in whether a measure is constitutional along with those of the legislative and the executive branches. Some people accuse the Supreme Court of being a policy making institution and acting politically. And in fact, it could be a policy making institution if justices were to act on the basis of their own views of what good policy are, as opposed to enforcing the original meaning of the text of the constitution. . . The more the justices follow the text of the constitution, the original meaning of the text of the constitution, the less it will matter what their political preferences are because they still have to follow the law the way everybody else has to follow the law. If, in fact, they get to update, revise, change, or supplement the original meaning of the text, then it would matter a great deal what their political views are because they're going to update it according to their political vision. That's another reason why the original meaning of the text of the constitution is less political than living constitutionalism, which depends entirely, or almost entirely, on the political views of those who are now updating the text of the constitution. The constitution is not the law that governs we the people. It's not the law that governs us. What is it? It's the law that governs those who govern us. And those who are governed by this law can no more change the law that governs them without going through the change process, which is the amendment process, than we the people can change the laws that are imposed on us without going through the legislative process. Take speed limits for example. We don't get to change the speed limits that are imposed on us when they are set unreasonably low. To change a speed limit we have to go through the legislative process. And by the same token, those who are governed by the text of the constitution can't change the text of the Constitution without going through the amendment process. Unlike the people, who are never asked for their approval of the US Constitution, each and every person who receives power under this Constitution does so after taking an oath to be bound by this constitution, which means the written Constitution. They cannot change the law that they are taking an oath to be bound by, or that oath would be, essentially, an oath to nothing. It would be an oath to follow the text of this Constitution however they wish that text to read. That would not be an oath at all. So, we give power under this constitution to individuals in government in return for their oath to follow the constitution, which means they cannot change the constitution. And this goes for the judiciary as well as the legislative and executive branch. The judges who take an oath to follow or adhere to this constitution cannot change its meeting, even where they think that the original constitution's meaning is deficient This all leads to a very simple proposition, and that is the meaning of this constitution must remain the same until it's properly changed. The meaning of the constitution must remain the same until it's properly changed by amendment. And that is a one sentence shorthand for originalism, meaning, the text of the constitution is its original meaning. The meaning it has before it's properly changed by amendment. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! - Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper role of the judiciary. Today’s episode features Professor Randy E. Barnett, who is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. He teaches constitutional law and contracts, and is Director of the Georgetown Center for the Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - How is judicial review implicit in the judicial power? Today we’re talking with Professor Randy Barnett about how the Founders understood judicial review and how the concept evolved as a justification for judicial supremacy. What exactly is the proper Constitutional role of the courts? All judicial power is resided in the judicial branch. This puts a premium on knowing what was the original conception of the judicial power, what was included within the judicial power. And included in the judicial power was what we today call judicial review. It wasn't called judicial review back then, even then it was considered to simply be the duty of a judge to follow the law. And that meant following the higher law provided by the Constitution when it conflicted with any inferior laws or lower laws that would be provided, for example, by an act of congress or by a law that was enacted by a state. The judiciary had the power to adjudicate cases and controversies between individual parties, and that meant it had ability to decide disputes that came before it. The judiciary was not given some kind of supreme power over all the other branches of government to direct that they do this, that, or the other thing. Rather, that when a case came before the judicial branch that was for example depends on a law that was passed by congress then the judicial branch would have no choice but to ascertain whether that law was consistent with the powers of congress before it could be imposed on the people. The constitution only specifies that there be a supreme court, and basically only specifies that there be a chief justice of the supreme court. The rest of the courts are, what the constitution would refer to as inferior courts, are a product of legislation passed by congress and signed by the president. So it is the various judiciary acts that congress has passed since the founding of the country. It's the various judiciary acts that congress has passed since the founding of the country that comprise and constitute the lower courts. Indeed, it is an act of congress that decides how many justices there should be on the supreme court. That's also not specified in the constitution. Nine justices is what we have now, it's what we've had for quite a while, but we've had as few as six justices authorized, which is what it was in the beginning, and as many as 10 justices that have been authorized by congress. So congress not only constitutes the lower courts, it actually also constitutes the size of the supreme court itself. Can you tell us more about judicial review? What is it? Where did it come from? And why is it sometimes criticized? The term "judicial review" is nowhere in the constitution, and it isn't really to be found at the founding. In fact, the term judicial review doesn't come into common usage until the 20th century, and it's about that time that Marbury versus Madison assumes its significance as a supposedly great constitutional case. Marbury versus Madison simply adopts the view that Alexander Hamilton articulated in Federalist 78, and that is the judges had the duty to follow the higher law when it conflict with a lower law like a statute. The higher law is the constitutional, lower law is the statute. There are many cases before Marbury in which the Supreme Court assumed that in a conflict between the higher law of the constitution and a statute, a statute would be null and void if it conflicted with that higher law. Marbury versus Madison simply represents the first time it finally held that a federal statute did in fact exceed the powers of Congress, and therefore was unconstitutional and void. It was simply the first occasion on which that power was used. It was not the first time that power had been recognized by the Supreme Court. The idea that Marbury versus Madison invented the power of judicial review came about in the 20th century, when people were trying to illegitimate the power that were exercised by the Supreme Court to invalidate, at the time, progressive legislation. It was then when it was asserted that this was a power that had been invented by John Marshall. . . Marbury has sometimes been used to justify what's called judicial supremacy, and that's the idea that the Supreme Court is somehow above all of the other branches of government when it interprets the constitution when in fact, what the judicial power is is the power to decide cases and controversies that come before the court. When a case comes before the court and a conflict exists between the constitution and, let's say, a statute, the Supreme Court has no choice but to follow the higher law of the constitution. That is its duty, to follow the law. This does not mean that the Supreme Court's opinions in which they justify their outcomes, the decisions that they make, need to be followed by all of the other branches of government as though they were a statute unto themselves. What needs to be respected is the judgements of the Supreme Court. When they finally decide a case, the other branches of government respect the judgements of the Supreme Court, but that's not the same thing as adhering to the opinions of the justices when they justify their judgements. Those opinions are, in fact, the opinions of the Supreme Court. They're helpful to predict what a future Supreme Court will do, and other constitutional are going to want to know that. But even Supreme Court justices themselves don't follow all the previous opinions of ... their own opinions, or the opinions of their predecessors when they're deciding a case, and neither do other branches of government need to follow every jot and tittle of an opinion of the Supreme Court. Doesn’t judicial review lead to too much power for judges to rule based on their policy preferences instead of the Constitution? What is the debate here? There are those who criticize the power of judicial review, which is really the duty of judges to follow the law, because it seems to put the judiciary above the other branches of government. But that, in fact, is a misconception of how the separation of powers work. If congress decides that a particular action is beyond its constitutional powers to enact it doesn't have to pass a law. And if it refuses to pass a law because it's beyond its powers to enact a law the other branches don't get a say in that. That's congress's decision solely. If congress decides a particular action is within its powers only then will it get passed over to the executive branch for the president to decide whether he or she agrees whether such a power is within the power of congress. If the president says yes, and only if the president says yes, will the matter then go to the judiciary. Alternatively, if the president says no a super majority of congress can override that presidential veto and then it will go to the judiciary. So therefore, only if a super majority of the legislature thinks a measure is constitutional, or a combination of the legislature and the president thinks a measure is constitutional, only in that case will the judiciary have any say whatsoever. And under our system, essentially all three branches of government must concur that a measure is constitutional before it can be imposed on us, we the people. And this is an ultimate check on the power of the government as a whole, that all three branches must concur. This does not make the judiciary a superior branch, what this makes is the judiciary is an equal branch. So it has an equal say in whether a measure is constitutional along with those of the legislative and the executive branches. Some people accuse the Supreme Court of being a policy making institution and acting politically. And in fact, it could be a policy making institution if justices were to act on the basis of their own views of what good policy are, as opposed to enforcing the original meaning of the text of the constitution. . . The more the justices follow the text of the constitution, the original meaning of the text of the constitution, the less it will matter what their political preferences are because they still have to follow the law the way everybody else has to follow the law. If, in fact, they get to update, revise, change, or supplement the original meaning of the text, then it would matter a great deal what their political views are because they're going to update it according to their political vision. That's another reason why the original meaning of the text of the constitution is less political than living constitutionalism, which depends entirely, or almost entirely, on the political views of those who are now updating the text of the constitution. The constitution is not the law that governs we the people. It's not the law that governs us. What is it? It's the law that governs those who govern us. And those who are governed by this law can no more change the law that governs them without going through the change process, which is the amendment process, than we the people can change the laws that are imposed on us without going through the legislative process. Take speed limits for example. We don't get to change the speed limits that are imposed on us when they are set unreasonably low. To change a speed limit we have to go through the legislative process. And by the same token, those who are governed by the text of the constitution can't change the text of the Constitution without going through the amendment process. Unlike the people, who are never asked for their approval of the US Constitution, each and every person who receives power under this Constitution does so after taking an oath to be bound by this constitution, which means the written Constitution. They cannot change the law that they are taking an oath to be bound by, or that oath would be, essentially, an oath to nothing. It would be an oath to follow the text of this Constitution however they wish that text to read. That would not be an oath at all. So, we give power under this constitution to individuals in government in return for their oath to follow the constitution, which means they cannot change the constitution. And this goes for the judiciary as well as the legislative and executive branch. The judges who take an oath to follow or adhere to this constitution cannot change its meeting, even where they think that the original constitution's meaning is deficient This all leads to a very simple proposition, and that is the meaning of this constitution must remain the same until it's properly changed. The meaning of the constitution must remain the same until it's properly changed by amendment. And that is a one sentence shorthand for originalism, meaning, the text of the constitution is its original meaning. The meaning it has before it's properly changed by amendment. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!