Provincial Court Judges: Can They Rule On Constitution?

The power of a provincial court judge to rule a law as unconstitutional is a topic that has been widely discussed and debated, with references made to it during the debates at the Constitutional Convention by the Founding Fathers. The concept of judicial review, which gives courts the authority to determine the constitutionality of laws, is central to this discussion. Alexander Hamilton, in Federalist No. 78, provided a comprehensive explanation of judicial review, stating that federal courts have the power to declare laws unconstitutional to protect the people from potential abuse of power by Congress. This power of judicial review is not absolute, as George Mason clarified, emphasizing that it applies specifically to laws that are deemed unconstitutional. The Supreme Court, as the highest court in the United States, holds the ultimate authority to make final decisions on the constitutionality of statutes.

Characteristics and Values

Federal courts' power of judicial review

The power of judicial review gives the Supreme Court and federal courts the authority to interpret the Constitution and decide whether federal or state statutes conflict with it. This power is derived from Article III and Article VI of the Constitution, which establish the federal judiciary and vest the judicial power of the United States in the Supreme Court and inferior courts established by Congress.

The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution, giving it the ultimate authority to decide whether statutes are consistent with the Constitution. This means that the Supreme Court can declare a Legislative or Executive act in violation of the Constitution, even if it is not explicitly mentioned in the text of the Constitution itself. The Supreme Court has held 483 laws unconstitutional in whole or in part during the period from 1960 to 2019.

The federal courts' power of judicial review is essential for ensuring that each branch of government recognizes the limits of its own power and that popular majorities cannot pass laws that harm or take undue advantage of civil rights and liberties. This power was familiar to the framers of the Constitution and was referenced during the debates at the Constitutional Convention, particularly in the discussion of the Virginia Plan, which included a "council of revision" that would examine and accept or reject proposed new federal laws.

While the Supreme Court has the final say in matters of constitutional interpretation, the lower federal court system, established by the Judiciary Act of 1789, also plays a crucial role in the judicial review process. These courts are the first point of contact for many cases and have the authority to interpret and apply the Constitution at the initial stages of a legal dispute.

State constitution as fundamental law

The U.S. Constitution is the nation's fundamental law, codifying the core values of the people. It is over 200 years old, with its roots in the Federalist Papers, a series of essays by Alexander Hamilton, James Madison, and John Jay. The Supremacy Clause, contained within, makes explicit references to the concept of "judicial review", the idea that even duly enacted statutes do not provide rules for courts if they are deemed unconstitutional. The core message of the Supremacy Clause is that the Constitution and federal laws take priority over conflicting state laws.

The role of the courts is to interpret the Constitution's meaning, as well as the meaning of laws passed by Congress. Alexander Hamilton, in Federalist #78, noted that the federal courts "were designed to be an intermediate body between the people and their legislature" to ensure that the people's representatives acted only within the authority given to Congress under the Constitution.

The American democratic system is not solely based on majority rule. There are certain principles deemed so important that the majority has agreed not to interfere. For example, the Bill of Rights was passed to protect concepts such as freedom of religion, speech, equal treatment, and due process of law. The courts play a vital role in maintaining the rule of law, especially when hearing the grievances of minority groups or those with minority opinions.

The U.S. Constitution, as the fundamental law, outlines the legal status of the laws that Congress is empowered to make, as well as the legal status of treaties. It is the responsibility of the courts to apply the Constitution as "Law", interpreting and regulating their decisions by its fundamental laws.

Supreme Court's final appellate jurisdiction

Article III, Section I of the US Constitution establishes the federal judiciary and states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The Constitution thus vests the Supreme Court with appellate jurisdiction "both as to Law and Fact" but grants Congress the power to shape that jurisdiction.

The Evarts Act of 1891 substantially reduced the mandatory review of federal court cases by the Supreme Court. This Act created the circuit courts of appeals, which hear cases arising under federal statutes, with the right of appeal to the Supreme Court preserved if the amount in controversy is greater than $1,000. The 1891 Act also authorized the circuit courts of appeals to review interlocutory orders granting injunctions.

Congress has authorized Supreme Court review of decisions of the state courts and lower federal courts through two procedural mechanisms: appeals and petitions for a writ of certiorari. The Court has discretion to grant or deny review via a petition for a writ of certiorari; by contrast, the Court is required to exercise jurisdiction over cases properly before it on direct appeal. For the first century of the Court's existence, most of its cases were direct appeals.

The Supreme Court plays a crucial role in the constitutional system of government. As the highest court in the land, it is the court of last resort for those seeking justice. Its power of judicial review ensures that each branch of government recognizes its limits, and it protects civil rights and liberties by striking down laws that violate the Constitution. The Court has the final say over when a right is protected by the Constitution or when a Constitutional right is violated.

The Virginia Plan's council of revision

The Virginia Plan, introduced to the US Constitutional Convention in 1787, was written primarily by James Madison and presented by Edmund Randolph. It outlined a strong national government with three branches: legislative, executive, and judicial. The Virginia Plan went through several revisions before it was finalized, and one of its key features was the proposal for a Council of Revision.

The Council of Revision, as envisioned by the Virginia Plan, was to be composed of the executive and a number of members of the national judiciary. Its primary function was to examine and review every act of the national legislature before it became operational and every act of a particular legislature before a negative decision could be finalized. The Council's dissent could lead to the rejection of a piece of legislation unless it was passed again by the national legislature or the particular legislature's negative decision was overridden.

The concept of the Council of Revision sparked concerns about the balance of power between the judiciary and the legislature. Some believed that it would give the judiciary too much power over the legislature, especially considering that federal judges were also expected to have the authority to overturn unconstitutional laws through judicial review.

The alternative view, as suggested by Alexander Hamilton in Federalist No. 69, was to grant the veto power to the President, similar to the structure of New York's Council of Revision at the time. The New York Council of Revision, established under the Constitution of the State of New York in 1777, included the Governor, the Chancellor, and the Justices of the Supreme Court, or any two of them. This council had the power to veto any legislation, but its veto could be overridden by a two-thirds majority in each house of the legislature. The New York Council of Revision was eventually abolished in 1821.

Judges becoming complicit in unconstitutionality

In the United States, judges play a crucial role in safeguarding citizens against the enforcement of unjust, harmful, and unconstitutional laws. However, there have been instances where judges have been accused of becoming complicit in unconstitutionality and perpetuating injustice. This phenomenon, known as "lawfare," refers to the strategic use of legal proceedings to harm or intimidate an adversary rather than to pursue justice in good faith.

One notable example of judges being complicit in unconstitutionality is the US Supreme Court's ruling in Plessy v. Ferguson (1896), which upheld racial segregation. By lending legal weight to a discriminatory status quo, the judiciary became complicit in perpetuating injustice. Legal scholar Eric Posner warns of the modern judiciary's vulnerability to lawfare, stating that "courts are not immune to being co-opted." He argues that a judge who entertains a punitive case rather than one seeking resolution becomes complicit in the misuse of the judicial system.

While some argue that a judge's role is to hear cases impartially and not to question motives, others emphasize the judiciary's gatekeeping function. Legal commentators like Dershowitz, Motley, Honig, and Posner reinforce the view that judges must actively safeguard the courts from exploitation. They argue that judicial impartiality does not demand passivity in the face of clear wrongdoing and that judges must use their discretion to reject lawfare.

Additionally, judges may be subject to implicit or explicit biases that influence their rulings. Professor Jerry Kang notes that judges are not immune from implicit biases, and highly visible US Supreme Court cases have demonstrated this point. These biases may cause judges to advance particular principles or causes based on their personal beliefs, further perpetuating injustice and unconstitutionality.

In conclusion, while judges are meant to protect citizens from unconstitutional laws, they may become complicit in unconstitutionality through their rulings. This can occur due to a failure to recognize or resist strategic legal proceedings, the influence of biases, or a lack of vigilance in safeguarding the integrity of the judicial system.

Frequently asked questions