It is generally believed that the Constitution manifests the supreme will of the sovereign people. However, this belief is not without criticism. In “Judicial Review as Democratic Ideology,” the author primarily criticizes the creation and evolution of the legal concept of judicial review. The author also discusses the effect of the concept on the American consciousness and on the American judicial system in general. For the most part, the author contends that, with the rise of judicial review through the landmark case of Marbury v. Madison in 1803, “[T]here is no longer a Constitution. There is, however, a Court” (24).
In other words, the legal fiction called judicial review gave the Supreme Court the power to interpret the Constitution as part of what it claims as its authority. As a result, the Court can effectively override the sovereign will of the people by interpreting what that same will without having to answer to any other institution. The later case of Eakin v. Raub echoes the same sentiment. In the case, it was decided that the State Supreme Court has the authority to declare legislative acts as void if these acts go against the State Constitution. Apparently, Eakin takes the form of Marbury but on a rather smaller scale.
What Eakin did is to apply the Marbury ruling on the state level, thereby reaffirming the controversial ruling in the latter case. Indeed, this reflects the idea that “the American system is, in fact, is a judicially dominated unitary structure, wherein the will of the judges rules, but wherein it finds articulation as the will of the sovereign people” (34). Put in another way, the will of the judges are cloaked with the mantle of the purported people’s will. One interesting point of Eakin can be understood from the dissenting opinion of Pennsylvania Chief Justice Gibson.
He stresses that the legislature is the only one that can repeal its own legal creations and not the courts. To grant the courts this power is to make the courts supreme in many ways as it will have not only judicial powers and functions but also legislative authority. Chief Justice Gibson also pointed out that the courts are not infallible in interpreting laws. Thus, they can be corrected and this can be done through the people themselves who elected those in the legislature in the first place. While the dissent cannot revoke the principle in the main opinion, it provides a critical insight into the other side of the argument.
It should be remembered that Chief Justice Marshall played a pivotal role in the case. Apart from the fact that he penned the court’s decision in Marbury, it was he who had the mandatory task of delivering the commissions to the new judicial appointees even if he was already by that time the Chief Justice. It was so because he continued as the acting Secretary of State. Understandably, the irony rests on the fact that Chief Justice Marshall had to decide a case together with the sitting justices of the Supreme Court where he was a direct party to.
Thus, it can be said that Chief Justice Marshall knew very well the matters relevant to the case. This, however, becomes a fertile ground for criticism. For the most part, the Marbury case has guided and continues to guide contemporary jurisprudence. The lasting effect of the concept of judicial review on America’s history can be easily seen in modern cases. If at all the concept of judicial review has served a vital purpose, it is the fact that is has helped shape the stance of the American judiciary on crucial issues.