America’s Heritage: Constitutional Liberty
by Herbert W. Titus and Gerald R. Thompson
JUDICIAL POWER AND JUDICIAL REVIEW
And it came about the next day that Moses sat to judge the people, and the people stood about Moses from the morning to the evening. Now when Moses’ father-in-law saw all that he was doing for the people, he said, “What is this thing that you are doing for the people? Why do you alone sit as judge and all the people stand about you from morning to evening?” And Moses said to his father-in-law, “Because the people come to me to inquire of God. When they have a dispute, it comes to me, and I judge between a man and his neighbor, and make known the statutes of God and His laws.” [Exodus 18:13-16]
The third type of civil power, judicial power, is perhaps the most misunderstood type of power today. Those who advocate an “active” judiciary are accused of rewriting the constitution and perverting justice. Their accusers counter “judicial activism” with “judicial restraint,” “strict constructionism,” or the “doctrine of original intent.” But have any of these positions captured the essence of the matter, that is, the true nature of judicial power?
Exodus 18:16 specifies a three-part test for the exercise of judicial power according to the law of nature. The law of nature is exemplified in these verses because the written law of God had not yet been revealed at the time of the events described. The first part of the test is contained in the phrase, “When they have a dispute, it comes to me.” Moses did not go to the dispute, the dispute came to him. Thus, the first principle of the nature of judicial power is that it is a responsive power, not an initiative power.
This is in contrast to the way executive and legislative power were exercised. Exodus 34:29-35 tells how Moses brought new tablets of stone containing the Ten Commandments after the first ones had been broken on account of the people’s unfaithfulness with the golden calf. Moses brought the law to the people, reciting the statutes and ordinances of the Lord to the people. As the law-bearer, or legislator, he took the initiative to instruct the people how to govern their lives. That is the nature of legislative power.
Similarly, Joshua exercised executive power as commander-in-chief by taking initiative to muster the army to cross the Jordan river in order to take the promised land, as shown in Joshua 1:10-11. He didn’t wait for the people to ask whether they were ready to go, or to decide whether they ought to go. He simply told them to be ready in three days.
This principle is evident in the way foreign policy is conducted by the President. In the controversy over Iranian policy, the President, or those acting under his authority, took initiative. The President didn’t wait for someone else to take the initiative. Similarly, Congress doesn’t wait for someone to complain before it takes action, especially to determine whether the President acted properly in respect to Iran. But, we would not expect, even in this day, that a Justice would convene the Supreme Court to determine whether the President had violated the law. As is fitting for the Court, we hear nothing about a judicial determination on the matter until the matter comes to it, if ever.
The second essential feature of judicial power is also found in Exodus 18:16. Moses said, “I judge between a man and his neighbor.” That is, he resolved a dispute for the parties to the case, not for everyone else. He did not resolve disputes between a man and the rest of the nation, or between one part of the nation and another part of the nation. Therefore, the second principle of the nature of judicial power is that judicial power extends only to resolve disputes between individuals party to a case.
This exercise of judicial power is reflected in the difference between a “rule” and an “order.” A court cannot issue a rule under the law of nature, because the nature of any rule is that it is an action of general application. Rules apply not only to parties in a case, but to everyone. This distinction is illustrated by contrasting two scriptures. Exodus 20:13 says, “Thou shalt not kill,” a rule applicable to all persons. Yet, Numbers 35:24 specifies that the congregation “shall judge between the slayer and the blood avenger” to determine whether Exodus 20:13 had been violated. The judgment, once rendered, binds only the parties to the dispute, because it is an order. The rule against murder, however, binds everyone.
This distinction is reflected again in Deuteronomy 17:8-13, which states that when a judge gave an order in a case, the parties were duty bound to obey it. There is no comparable statement in the Bible with respect to legislative rules. In fact, Acts 5:29 evidences how legislative rules which are contrary to God’s law must be disobeyed. But a judicial order must be obeyed, or the party will be found in contempt of the court. This is based on the principle that a man cannot be the judge of his own cause. The losing party to a case cannot decide to disregard the judgment against him and follow a different course, because such an action would be presumptuous.
But, the court’s judgment must be confined to an order for the contempt power to be exercised lawfully. Otherwise, a court could hold anyone in contempt for disagreeing with its opinion. This is what distinguishes judicial power from legislative power. Only the legislative power can make laws; the judiciary can merely apply pre-existing laws to the facts in a given case.
Refer again to Exodus 18:16 for the third part of the test for judicial power under the law of nature. After stating that he waited for a dispute to come to him, and then judged between a man and his neighbor, Moses said that he made known the statutes of God and His law. Not only is the nature of judicial power responsive rather than initiative, and limited to giving orders to parties rather than rules to all men, the law of the nature of judicial power is restricted to judgment, not will.
Moses did not say that he enforced his judgments, either by coercing compliance or by jailing people who failed to carry out his order. All the judge has is judgment, that is, to make known the statutes of God and His law. This is what distinguishes judicial power from executive power. Only the executive has power to execute the law; courts can merely pronounce judgments someone else has to carry out.
It is only within this framework for the nature of judicial power that judicial review can be properly understood. The first instance of judicial review mentioned in the Bible occurs in 1 Samuel 13:8-14. Saul was to wait for Samuel to make sacrificial offerings before leading the army out to fight the Philistines. When Samuel was delayed, Saul made the offerings himself, later explaining to Samuel that “the people were scattering from me . . . so I forced myself and offered the burnt offering.” In other words, Saul determined it was necessary to make the offering due to an immediate threat of losing his army.
Yet, Saul was not authorized to offer sacrifices on behalf of the people. Saul was vested solely with executive authority, and the authority to offer sacrifices was vested in the priest or judge. The law governing Saul’s authority was not altered because of the necessity of the moment. Accordingly, Samuel responded to Saul, “You have acted foolishly; you have not kept the commandment of the Lord your God, which He commanded you, for now the Lord would have established your kingdom over Israel forever. But now your kingdom shall not endure.” Samuel, who retained judicial power after the institution of the kingdom in Israel, exercised his authority to judge the king in violation of the law.
Samuel judged Saul similarly in 1 Samuel 15:10-23, when Saul had spared the king of the Amalekites and the best of his sheep after being expressly instructed to utterly destroy them in 1 Samuel 15:3. This time, when asked why he had disobeyed the law, Saul replied that “the people spared the best of the sheep and oxen, to sacrifice to the Lord your God.” That is, Saul attempted to justify his actions not on necessity, but by a desire to do good works. But the judgment of Samuel was not swayed; “to obey is better than sacrifice.”
These examples illustrate the law of the nature of judicial review. First, Samuel merely made known the statutes of God and His law. His judgment of the law did not depend upon widely held public opinion or Saul showing a “compelling state interest.” Second, he issued only an order in each case, not a rule, leaving God to actually execute judgment against Saul. Third, he did not substitute his will for the will of Saul, nor did he place himself above Saul. He merely gave effect to the will of the law, and at all times acknowledged that both he and Saul were under the law. Judicial review, under the law of nature, is not equivalent to judicial supremacy.
The foregoing framework for the law of the nature of judicial power and judicial review is incorporated in the framework of the U.S. Constitution. Article III of the Constitution begins, “The judicial Power of the United States, shall be vested in one Supreme Court. . . .” Yet, nowhere in the Constitution is “judicial power” defined. Rather, the framers presumed that the exercise of judicial power would be governed by a predefined legal order. An examination of the testimony of American history regarding judicial power affirms that the framers intended the law of nature of judicial power and judicial review to govern the federal courts.
Recall in the discussion of the separation of powers in chapter 5 that the judiciary was treated differently from the executive and legislative branches. That is, the judiciary was given a measure of independence from political concerns. The reason for this judicial independence is summarized in Article XXIX of the Constitution of Massachusetts of 1780:
It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.
Inherent in the concept of an independent judiciary is a biblical view of the nature of law and of judicial power. Judges, according to the law of nature, make no rules, exercise no will, and in short, wield no discretion. The full scope of judicial power is comprehended by a duty to the law – there is no room for the exercise of judicial politics. Hence, the framers believed, there was no need to hold judges politically accountable. Judges were to be accountable solely to the law. The insulation of judges from political processes, such as elections, short terms of office and variable compensations, assured their ability to remain faithful to the law in spite of political pressures.
This same commitment to an independent judiciary is found in the U.S. Constitution. Article I of the Constitution specifies that the legislative body, both the House and the Senate, were to be subject to election by the people. The House is subject to election every two years directly by the people, while Senators are elected every six years, originally by the state legislatures and indirectly by the people, and currently directly by the people. Article II provides that the President is to be elected by the people via the electoral college every four years.
But Article III contains no similar provisions for federal judges. Rather than being elected, judges are appointed by the President with the Senate’s approval, as provided in Article II, Section 2, Clause 2. Further, judges of all federal courts are to “hold their offices during good behavior,” and receive a compensation which “shall not be diminished.” Thus, the independence of the federal judiciary is expressly provided for, consonant with the early practice of the states.
However, judicial independence loses all meaning once the distinction between law and politics is abandoned. When judges exercise discretionary powers, they operate in the realm of politics, not law, and should be held politically accountable. The risk of tyranny is high when the people who exercise great political powers hold office for life terms. The suggestion that judges should be elected reflects a commitment to restore accountability commensurate with the power exercised. Unfortunately, this is done at the expense of faithfulness to the law of nature and our nation’s heritage. Our forefathers believed that it was impossible for anyone to exercise lawful judicial power and not be politically independent.
Nonetheless, a large number of states now provide that all or some state judges are to be elected by the people, rather than appointed for terms “during good behavior.” For example, three California Supreme Court judges were recently voted out of office by the people. Why is it that we have abandoned the early constitutional heritage of an independent judiciary? First, many people no longer believe there is a law which governs separation of powers. They view the matter instead as a mere political tool of expediency, of checks and balances. Second, many people no longer believe in the law of the nature of judicial power. Legislators and executives appoint judges who do not respect the law of judicial power, and the liberties of the people are unsecured.
In addition to the foregoing, the law of the nature of judicial power as understood in American legal history presupposes that law is fixed, uniform and universal, and must conform to the nature of a “rule.” Any constitution intended to administer the legal framework for a nation must be of a permanent nature. Thus, a necessary step in understanding the nature of judicial power is to understand the nature of a constitution as the fixed standard for the administration of law.
The early common law of the American colonies and states confirmed that a constitution must be fixed. This was seen not only as a means of preventing legislatures from changing the fundamental laws of the states, but also as a means of providing a sure guide for the exercise of judicial power. A fixed constitution presupposed an objective legal order which was binding on the judge, hence, the role of the judge was merely to discover the law, not make it. Sir William Blackstone expressed this sentiment, widely accepted at the founding of the nation, as follows:
[I]t is still necessary to have recourse to reason, whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life. . . . And if our reason were always, as in our first ancestor before his transgression, clear and perfect . . . we should need no other guide than this. But every man now finds the contrary his own experience; that his reason is corrupt. . . .
Divine providence . . . hath been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature. . . . But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages. . . . Yet undoubtedly the revealed law is (humanly speaking) of infinitely more authority than what we generally call the natural law. Because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law.
Thus, Blackstone believed, the law of nature established a pre-existing legal order binding on all judges, which no man could change. The role of the judge was to discover the law of nature with the assistance of human reason and the Bible. All laws made by man, therefore, must conform to the fixed standard of the law of nature, as discovered. Since no man is capable of altering the laws of nature, Blackstone concluded that judges do not make law at all. Rather, a judicial opinion was only evidence of law, because “the law and the opinion of a judge are not always convertible terms, or one and the same thing.”
Alexander Hamilton affirmed this view, writing in Federalist #78, that the judicial branch of government is the least dangerous because it has neither force nor will, only judgment. Chief Justice Marshall agreed, noting in Osborn v. The Bank, that:
Judicial power as contradistinguished from the power of the laws has no existence. Courts are mere instruments of the law and can will nothing. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the law.
It follows that if judges do not make law, which by definition is a “rule,” then judges cannot issue “rules,” only orders. A rule is binding on men generally, and is by nature legislative, whereas an order binds only the person to whom it is directed. Thus, Article III extends the judicial power of the courts of the United States only to “cases” and “controversies.” The Constitution assumes that courts use existing law to resolve only present actual disputes, not that courts create law to resolve future or hypothetical disputes. If a judge could issue a rule which governed future disputes, the judicial power would not be limited to actual cases and controversies.
Consequently, a court can issue an order only to those persons involved in a present actual case or controversy. These persons include the parties to the case, and lower courts actually involved in the dispute, but no other persons. A court can never issue an order binding on non-parties or other courts not actually involved in the present case, because then the order would become a rule. This principle has far-reaching implications in the understanding of judicial precedent. The doctrine of stare decisis, for example, holds that current cases presenting issues virtually identical to issues previously litigated ought to be resolved harmoniously. But stare decisis can never be rightly understood to bind one judge by another judge’s opinion of the law.
Similarly, a case can never be “overruled” in the sense that the order issued by the court is modified or rendered void. Once a case is fully litigated, any judicial order must be fully obeyed, and cannot be revoked by any other person or court. If the order in a prior case could actually be voided, the new order would operate as an ex post facto law. Further, no court has jurisdiction over a case, once its litigation ends. “Overruled” can only properly mean that a previous opinion supporting an order will no longer be used as evidence of law. “Overruled” can never mean that there has been a change in law, because neither the prior order nor the new order are themselves law.
For example, in Adkins v. Children’s Hospital (1923), the U.S Supreme Court struck down a District of Columbia minimum wage law as unconstitutional. In 1937, in West Coast Hotel v. Parrish, the Court decided Adkins was erroneous and “overruled” it. The U.S. Attorney General was asked to give an opinion as to whether the original statute was still law, or whether Congress needed to reenact it. He replied that the courts have no power to repeal or abolish a statute, and notwithstanding a decision holding it unconstitutional, a statute continues to remain on the statute books valid from the date it was first effective. Thus, the Attorney General affirmed that a court opinion, if contrary to law, is not law at all. Congress did not need to reenact the law – it had simply not been enforced.
Nowhere is the limitation of judicial power to judgment, not will, more crucial than in the area of judicial review. Judicial review, rightly understood, is the exercise of judgment to determine whether a legislative or executive act conforms to law. It is not a license for judges to substitute their will for that of the legislature or executive. The exercise of judicial review places pre-eminence on the law, not the judge. Judicial review cannot lawfully be used to create a government of men, rather than laws, nor does it establish Supreme Court opinions as binding on state or lower federal courts.
A proper view of judicial review can be summarized as follows, from the opinion of Justice Roberts in United States v. Butler:
There should be no misunderstanding as to the function of this court.. . . The Constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty – to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question . . . and having done that, its duty ends. . . .
The question may be raised whether an executive should enforce a court opinion which is contrary to law. The answer is that not only does an executive have discretionary authority under the Constitution not to execute a judgment contrary to law, he has a duty to faithfully execute the law. Thus, the executive is not obliged to automatically execute a judicial opinion just because a court issued it, because judges do not make law or rules. Only if the court’s opinion is true judgment, that is, in accordance with law, should it be executed. The decision whether to execute is an independent decision to be made according to the law of the nature of executive power.
Roe v. Wade, the 1973 pro-abortion decision in which the U.S. Supreme Court “reviewed” a Texas statute, has many critics, among whom is Justice Byron White. In his dissent to Roe v. Wade Justice White said, “As an exercise of raw judicial power, the Court perhaps has authority to do what it has done today, but in my view its judgment is an improvident and extravagant exercise of the power of judicial review which the Constitution extends to this Court.” Many opponents of Roe v. Wade have used this statement to support their criticism of the majority opinion, but in so doing, they unwittingly affirm several foundational assumptions about judicial power upon which the majority opinion was based.
First of all, the Roe v. Wade decision is not bad law, as Justice White suggests. Sir William Blackstone wrote in his Commentaries in 1765 that if a court opinion was manifestly absurd or unjust, as determined by right reason and divine law, such an opinion was not bad law, but was not law at all. This understanding of judicial opinions was embraced by the framers of the Constitution when they wrote that the Constitution was to be the supreme law of the land. Since Roe v. Wade is contrary to the law of nature regarding human life, and the Constitution, it is not law at all.
Second, although Justice White claimed the Court exercised “raw judicial power,” he conceded it perhaps had authority to do it. Similarly, he characterized the majority’s opinion as “improvident and extravagant,” but he still viewed it as an exercise of the power of judicial review. In other words, he viewed the majority’s opinion as unwise, but legally permissible. Yet, a close examination of the majority’s opinion reveals not a bad, or unwise, use of judicial power, but no exercise of judicial power at all.
Remember, judicial power is by nature responsive (not initiative), limited to the issuance of an order (not a rule), and restricted to the exercise of judgment (not will or coercion). After finding that the Texas abortion statute in that case failed to meet the Court’s tests under the Due Process Clause, the Court stated,
A state criminal abortion statute of the current Texas type that excepts from criminality only a lifesaving procedure on behalf of the mother without regard to pregnancy stage and without recognition of other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
The Court did not restrict its judgment to the Texas statute, but made it apply to all statutes “of the current Texas type.” The Court was unwilling to wait to determine whether any other state statute was unlawful in subsequent litigation. The majority wanted to resolve the matter now, once and for all, without waiting for someone else to bring another case under a different statute. Thus, the Court did not exercise judicial power at all, because its judgment lacked an essential feature of judicial power, that is, to wait to respond until a matter comes to it before deciding the outcome.
The opinion in Roe v. Wade can also be examined to determine whether it was in the nature of an order or a rule. Remarkably, the Court did not issue an instruction to the state of Texas declaring its statute unconstitutional and unenforceable. Rather, it specified a trimester formula which would bind all future statutes governing abortion. Further, the language of the formula applies to every state in the Union, yet only Texas was a party to the case. Thus, the trimester formula was designed to deny the other states any opportunity to be heard about the matter. Hence, the Court’s opinion again lacked an essential element of the exercise of judicial power, that is, the issuance of an order, not a rule.
We should not be surprised. The Supreme Court has taken its own language too seriously in Cooper v. Aaron, when Chief Justice Warren was frustrated by the reluctance and resistance in the South to implement the Court’s decision to desegregate public schools in Brown v. Board of Education. Speaking for a unanimous Court, Chief Justice Warren stated,
[T]he federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown Case is the supreme law of the land, and Art. 6 of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
If that language is taken seriously, and if the Supreme Court had decided in the recent Georgia sodomy case that sodomy could not be punished under the Constitution, then every sodomy statute in every state would have been unconstitutional, even though only the state of Georgia was a party to the case, contrary to the nature of judicial power. Look again at the decision in Roe v. Wade. The Court did not declare the Texas statute unconstitutional and leave it to the state legislature to redraft its statute in light of the Court’s finding. Rather, it wrote a new rule of law regarding abortion which had never been adopted by any legislature before. This was clearly not an exercise of judicial power, but a usurpation of legislative power.
Incredibly, state legislatures across the nation have responded to Roe v. Wade as if the Court had executive power, and have made little effort to make an independent judgment as to whether the decision was lawful. This is in sharp contrast to the state legislative response to Supreme Court decisions issued contemporaneously with Roe, holding that certain capital punishment statutes were unconstitutional. The states didn’t believe they were bound by that opinion and redrafted their capital punishment statutes to avoid the effect of the Court’s opinion. In just a few years, the Supreme Court began sustaining the validity of capital punishment laws, and the matter hasn’t been much of an issue since.
We need a similar exercise of independent state judgment in the area of abortion laws. We have a demonstrable legacy, in recent times, of the state recognition that judicial power is only judgment, not will. The law of the nature of judicial power agrees with this legacy. It is time for the legacy to be reclaimed.
* Copyright © 1987, 2006 Herbert W. Titus and Gerald R. Thompson. Used with permission.