Founders, judges and modesty

• Author: Venudhar Routiya
• Position: LL.M. (Constitutional and Administrative Law) & UGC-NET, Research Assistant to Legislative Assembly of Chhattisgarh (India), Chief Justice of the Federal Court of Australia.
• Pages: 25-35

FOUNDERS, JUDGES AND MODESTY

Venudhar Routiya*

Abstract

The most momentous, controversial, even frightening power of the federal

judiciary--the one in greatest tension with democracy and federalism--is the power to

invalidate federal and sta te statutes that in the opinion of the judges are inconsistent with

the federal Constitution. This power, which lawyers call "judicial r eview," has often been

regarded as the invention of a handful of free-wheeling late eighteenth- and early

nineteenth-century American lawyers, notably Chief Justice John Marshall, whose

opinion in Marbury v. Madison in 1803 is often thought to have created ex nihilo the

"American doctrine of judicial review." The distinguished constitutional scholar

Alexander Bickel called the power of judicial review "Marshall's a chievement."

For the Constitution does not say that federal courts can invalidate a statute.

Article VI, the "supremacy clause," describes the Constitution, along with federal statutes

and tr eaties made under federal authority, as "the supreme Law of the Land," and states

that "the Judges in every State shall be bound thereby." But it says nothing

about federaljudges being empowered to invalidate statutes, whether federal or state.

("Judges in every State" could not include Supreme Court justices, since the Constitution

authorized and envisaged the cr eation of a district--it became the District of Columbia--

that would not be part of any state.) In describing federal statutes and treaties as par t of

the "law of the la nd," Article VI could be understood simply to be commanding state

judges to acknowledge the supremacy of federal law. Article III confers the "judicial

Power of the United States" on the Supreme Court and such lower courts as Congress

decides to create, and the power expressly includes the power to decide cases ar ising

under the Constitution, as well as under other federal laws and under tr eaties--but at

most this only implies a power to a djudicate constitutional challenges to federal statutes.

"Any explicit grant of this power," in Robert Jackson's words, "was omitted ... [the

power] was left to lurk in an inference."

Key words: “Law and Judicial Duty,Founders, Judges and Modesty,

Constitutional Thought in USA”.

Introduction

The main purpose of Philip Hamburger's book is to counter this account of the

rise of judicial review by tracing the history of the practice all the way back to the Middle

Ages and ending with the Constitution of 1787. Hamburger is an accomplished and

assiduous legal historian, and his book is a work of imposing scholarship. But he is not

just a n antiquar ian. The idea tha t he has set out to overthrow--that judicial review was

invented in order to enhance the power of the Supreme Court--ha s implications that

* LL.M. (Constitutional and Administrative Law) & UGC-NET, Research Assi stant to Legislative

Assembly of Chhattisgarh (India), Chief Justice of the Federal Court of Australia.

Address to the 2011 Constitutional Law Conference, Sydney, 18 February 2011.