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Subject Area: Political Theory

Reviewing Judicial Review - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Reviewing Judicial Review

Jesse H. Choper

  • University of California, Berkeley

“The Scope of National Power Vis-à-Vis the States: The Dispensability of Judicial Review.” The Yale Law Journal 86 (July 1977): 1552–1621.

What should the appropriate role of the federal judiciary be on questions of apportioning authority between the nation and the states? The Court should abandon judicial review of federal questions when powers inherent in the federal legislative and executive branches can themselves resolve issues of constitutional federalism.

Constitutional issues of federalism fundamentally differ from constitutional issues of individual liberty. Constitutional issues of federalism define which level of government has the power to engage in permissible conduct. Choper takes the position that state representation in the national legislature makes the President and Congress trustworthy to view issues involved in federalism disputes. By contrast, beneficiaries of individuals rights, such as blacks, may not be adequately “represented” in the political branches. Therefore it is necessary that the judiciary assume a more active role in personal rights cases involving judicially favored minorities. However, in other cases “when democratic processes may be trusted to produce a fair constitutional judgment,” popularly responsible institutions are suitable to decide.

The major thesis disallows the federal judiciary to decide the ultimate constitutional power of the national government vis à vis the states. Nor should the judiciary decide whether federal action is constitutionally forbidden to the central government (and thus violates state hegemony). For example, the federal courts should not judge whether Congress has the constitutional power to promote governmental favoritism to blacks.

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Also immune from the federal judiciary's concern would be Congress's use of the spending, commerce, belligerency, or other powers. The author would quash state rights challenges to national actions except when they involved individual rights. The Court would not have jurisdiction over state rights claims that “only dissipate the Court's energies and undermine its ability to perform the critical task of protecting all individual constitutional liberties.”

The Court should reject traditional judicial review over questions of state rights. That the Court now “rarely exercises its power of review to invalidate national action is no guarantee that it will not revert to a mistaken policy.”