If you look back at part 1 of this series on The Court, all I put up at first was article III of the U.S. Constitution. I did that because those few paragraphs set up the framework for the entire Federal Judicial system. If you look back on that rather brief and unassuming section of our country's founding document, you will notice that it is quite remarkable for what is missing from its instructions, as it is for what it lays out. There is no mention of the number of Justices that are to sit on the Court or what their qualifications are to be, nothing about how many cases they are to take on or how they are to come to their decisions. Most striking by its absence however is explicit authority for what has come to be known as THE most important function of the Court: its jurisdiction to review laws and determine whether they are or are not within the bounds of the Constitution.
This act of Judicial Review is absolutely vital to our concept of a system of "checks and balances" upon our Federal Government. And although it is implied and interpreted from the Supremacy clause in Article IV, it is not an explicit power granted unto the Court in Article III. Why is this seemingly crucial doctrine not included within the bedrock of the Federal Courts? The answer, I believe, lies within chasm that seperates our idealized national narrative of how our Country was formed and the practical realities and constraints of the "living and breathing" times that those who laid down the foundations for our Nation lived within.
There is a deep rooted mythology within the American pysche in regards to our Founding Fathers. They are our secular saints; a group of rag-tag rightously pious patriots who, uniquely in the annals of history, cast off the iron clad shackles of tyranny and unbearably cruel and intolerable oppression; to immediatley grant unto their Continent, and the World at large, a fully functional and perfected Union, that would unquestionably become the Shining Beacon on the Hill and lead the world into a new age of peace and prosperity. What is amazing is that worship and deitization of these founders, rather then being marginalized and reduced over the years, only seems to grow more polished and refined within each passing generation. It would be a grave misstatement to say that Americans do not know Their history. The emphasis must be placed however must be placed on the Their, not the 'history.' As explained in James Loewon's groundbreaking book "Lies My Teacher Told Me," the American history that is disseminated through our textbooks and schools is a white-washed melodrama of enduring progress meant to indoctrinate this secular mythology, not to raise levels of critical thinking or encourage civic engagement.
How does this mass misreading of history affect our concept of Judicial Review? It is because the Founding Fathers were not a monolithic rightous entity that this radical concept was not included directly within our Constitution. Although 5 of the 13 States had some form of Judicial Review or Veto within their State Constitutions in 1787, this was still a controversial idea at the time. It was not included for reasons having to do with political compromise of the times to ensure that all States ratified the novel Federal document. So we can see that even at the very foundations of our country's laws, there is an element of give and take between individual liberty, States rights, and Federal Powers.
Stay tuned for my next Supreme Court entry where I explore the way the Court obtained the power of review and its use of such power in the absolute worst decision in its History.
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