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Sally Hayati, VP Environmental Priorities Network,
http://sallyhayati.wordpress.com 3
The constitution does not explicitly state that the judicial
branch has the power of judicial review, although delegatesto the
Constitutional Convention clearly expected the courts to assert
that right. At the time of the ConstitutionalConvention and for
years after, there was significant public opposition to this
anti-democratic feature of theconstitution. Anti-Federalist 78-79
states, There is no power above [the Supreme Court], to control any
of theirdecisions. There is no authority that can remove them, and
they cannot be controlled by the laws of the legislature. Inshort,
they are independent of the people, of the legislature, and of
every power under heaven. This is the essence ofan aristocracy. As
has been noted, A more powerful check upon democratic innovation it
would be hard to devise. 8
Since at least 1935, many constitutional scholars have asserted
that congress has the constitutional right to limitjudicial
reviewby passing a bill with the same wording shown above.9 It
would require a huge effort to elect aCongress that would pass such
a bill, but passing a constitutional amendment requires an even
greater effort. Weshould attempt to identify which is the more
promising and quicker route.
If we eliminate judicial veto, the legislature will exercise the
sovereign responsibility to decidewhat laws adhere to the
constitution. If such legislative freedom is potentially dangerous,
howmuch more so is our current state, where a permanent body of
un-responsible, unelected judgeshas the power to determine the
limits of all branches of government, including its own?
Ultimately, regardless of tactics, to oppose the power of big
money we need people power of all kinds. We learnedthis lesson
during the Great Depression. In the 1930s the Supreme Court vetoed
8 key elements of New Deal
legislation, claiming violation of the Commerce Clause of the
Constitution (substantive due process doctrine). SomeNew Deal
supporters proposed passage of a Constitutional amendment to give
Congress override power over anyjudicial review veto by the Court.
Wanting quicker results, FDR advocated that a Congressional billbe
passed toincrease the number of judges on the Supreme Court so that
he could pack it with liberal judges. But as these optionswere
debated, suddenly the Supreme Court began upholding several parts
of the New Deal, including minimum wageand the National Labor
Relations Act (Wagner act). And then Justice Willis Van Devanter, a
conservative, retired fromthe court, giving Roosevelt the chance to
appoint his own justice.10,11 No bill or amendment was ever needed
orpassed.
Why did the Supreme Court back down? It wasnt because of
FDRalone. It was because democratic forces weremilitant, organized,
and strong enough to force concessions. Hunger Marches of the
unemployed, the Veterans BonusMarch, strikes and factory
occupations, growing mass industrial unions, farmers marching to
demand moratoriums onfarm foreclosures,12and radical and populist
ideas and organizations everywhere, building organization and
strengthening resistance. Faced with direct threats by the
rabble, the Supreme Court and advisors recognized thatFDRs New Deal
was a strategic retreat, the lesser of two evils. Organized people
can beat organized wealth.
Clearly, no single movement or organization can create this sort
of mass ferment out of nothing. But the mass-basedmovements and
organizations that do exist can begin work on forming a united
front or coalition. Environmental,labor, racial justice, and other
social justice movements cannot stand alone against united and
organized wealthinterests. Together we have much greater clout and
greater potential to grow. The environmental movement inparticular,
requiring serious and fundamental system adjustments and working
under a short fuse, should lead thecall for unity.
Environmentalists have long decried a lack of support from labor
unions and workers, and not withoutreason. Yet thousands of unions
participated in the recent Peoples Climate March in NYC. Itstime
forenvironmentalists to go out in support of labor, to recognize
legitimate fears about impacts on jobs from technologychange and
environmental regulations, and work with labor to plan strategies
that protect peoples ability to earn a
living. A green living. Initiatives such as the Green New Deal
hold promise in this regard.13
8The Spirit of American Government, J. Allen Smith, Harvard
University Press, 1965, p
70.9http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3789&context=californialawreview,CA
Law Review, September 1935,Limiting Judicial Review by Act of
Congress, Joseph L.
Lewinson.10http://www.npr.org/templates/story/story.php?storyId=12578909711http://law.jrank.org/pages/7888/Judicial-Review.html12http://www.livinghistoryfarm.org/farminginthe30s/money_11.html13http://www.gp.org/GreenNewDeal/
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3789&context=californialawreviewhttp://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3789&context=californialawreviewhttp://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3789&context=californialawreviewhttp://www.npr.org/templates/story/story.php?storyId=125789097http://www.npr.org/templates/story/story.php?storyId=125789097http://www.npr.org/templates/story/story.php?storyId=125789097http://law.jrank.org/pages/7888/Judicial-Review.htmlhttp://law.jrank.org/pages/7888/Judicial-Review.htmlhttp://law.jrank.org/pages/7888/Judicial-Review.htmlhttp://www.livinghistoryfarm.org/farminginthe30s/money_11.htmlhttp://www.livinghistoryfarm.org/farminginthe30s/money_11.htmlhttp://www.livinghistoryfarm.org/farminginthe30s/money_11.htmlhttp://www.gp.org/GreenNewDeal/http://www.gp.org/GreenNewDeal/http://www.gp.org/GreenNewDeal/http://www.gp.org/GreenNewDeal/http://www.livinghistoryfarm.org/farminginthe30s/money_11.htmlhttp://law.jrank.org/pages/7888/Judicial-Review.htmlhttp://www.npr.org/templates/story/story.php?storyId=125789097http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3789&context=californialawreview
