Who would perform the function of determining whether legislation is constitutional?
Who determines it in the first instance (and often the final instance) now?
More to the point, what is the
record of the courts in enforcing the Constitution? The document's clearest commands pertain to its structural features, and all of
them have been gutted. It is only the Constitution's hopelessly-vague provisions—particularly those of the Bill of Rights, and of Section 1 of the Fourteenth Amendment—that judges have shown any great interest in. Notably, those guarantees have been used not in any
principled manner, but to veto state laws that conflict with judge-specific notions of good policy.
Consider, moreover, the Supreme Court's decisions in
Bowling v. Sharpe,
347 U.S. 497 (1954), and
Reynolds v. Sims,
377 U.S. 533 (1964), each of which required it to completely ignore the obvious import of related clauses! If we have a least lawless branch, it is not the judiciary, but the legislature. (The executive will always be the
most lawless.)
But ultimately, the most distressing fact is this: Judicial review allows a governing majority to push an agenda of radical reform, while simultaneously posing as moderates. Barack Obama can consistently proclaim his support for the death penalty, even as he appoints judges who will do everything in their power to secure its eventual abolition—by judicial fiat, of course (at least if need be). Whatever else may be said about such a system, it is neither democracy nor constitutionalism.
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