In the 1825 case of Eakin v. Raub, Pennsylvania Justice John Bannister Gibson declared that the judicial branch of the government had no right to influence or control the actions of any other branch of the government. Thus, Justice Gibson declared the act of judicial review unconstitutional and in disagreement with the proper role of the judiciary as inherently defined by the constitution. The proper roles and powers of the judiciary branch of the government, as conveyed to it by the constitution, are subjects of controversy because they upset the balance in power with the other branches of the government. Upon expressing his verdict on judicial review, Justice Gibson intended to challenge the view of the judiciary as established by Justice John Marshall in 1801, in the case of Marbury v. Madison. Marshall affirmed that judicial review is the instrument by which the Supreme Court ensures the constitutionality of the acts issued by the legislature and defends the American population against abuses. Hence, the judicial branch is superior to any statute issued by the legislature and it operates by confirming the constitutionality of laws. While the latter has become the popular view of the judiciary, it contradicts with the true duty and power of the judiciary and establishes it as the supreme branch of the government. Furthermore, in his reasoning, Marshall fails to properly consider the legislature’s power and role. Not withstanding its popularity, it cannot be denied that Marshall’s deliverance on judicial review grants the judiciary superior political power over all other branches of the government and greatly exaggerates the role of the judiciary in relation to the legislature by favoring of judicial review. Conversely, Gibson discusses the unconstitutionality of judicial review by regarding the judiciary as a vassal of the legislature. The constitution, not the judicial branch, is the supreme and true law of the land that must prevail; the people grant sovereign power to the legislature by electing them.
Although the judiciary branch is entitled to power and responsibility by the constitution and common law, it does not posses the degree of power over other branches that judicial review grants it. According to Gibson, political power is best defines as any degree of control or influence that may be exerted by a particular branch of the government over another (Kutler 32). However, the duties assigned to the judiciary require no need for political power. Judges are to apply previously established laws to particular cases. They are to judge whether particular actions by individual citizens defy the order in society as established by the laws issued by the legislature. Thus, judges are entitled with the interpretation of laws in society, a civil duty that involves nothing of a political nature. The judiciary’s concern is with the citizens and the distribution of justice in their behavior. Gibson affirms that such is the power of the judiciary as defined by common law. By this logic, judicial review is a political power wrongly invested to the Supreme Court because it acts against its civil duties and politically commands the actions of a separate branch of the government. Judicial review involves the act of passing judgment and, if necessary, annulling acts of the legislature. Upon defining the duty of the judiciary as civil, Gibson declares that the judiciary cannot possess political power for it is not required by its responsibilities.
In an efficient government, each branch must specialize in those duties in which it possesses a unique ability, but judicial review would involve the judiciary in duties of the legislature. As each branch claims a role in the government, none is supreme for each relies on the superiority of the other two to properly function. By the constitution, the legislature is attributed power of legislation, thus creating laws according to constitutional standards. The duty of the legislative branch is to refer to the constitution in order to issue laws and regulations that are in accordance with it. Under the logic that each branch has superiority over its assigned duties, it would follow that the legislative has superior abilities over the judiciary and executive in creating constitutional laws. Upon acknowledging such superiority, the legislature claims the ability to assess its own actions according to constitutional standards. Hence, a properly functioning legislative branch will only issue laws that are consistent with the constitution. Moreover, it is the duty of the legislature to properly review its own actions and decide upon their constitutionality, it is endowed with the superior ability to do so. On the other hand, judicial review puts into question the superiority of the legislature to exert the power of legislation. Moreover, judicial review allows judges to operate outside of their assigned field and assume acts that correspond to the legislature. The judiciary exercises superiority in the interpretation of the laws issued by the legislature, and is thus concerned solely with the meaning of such laws as applied to different situations. Upon assuming office, government officials swear adherence to the political principles upheld by the constitution in their specific field and regarding their specific duties. Judicial review would require judges to go against their oath to the constitution and operate in areas unconcerned with their field, areas in which they do not possess superior capabilities. However, the branches of the government are not equal as the legislature is to preside over the judiciary by sovereign right; thus, the judiciary may not assert itself by judicial review upon a superior branch. Justice Gibson declares that the legislature is the one body of the government that is most closely related to the constitution, as it possesses the power of legislation. Hence, the legislative branch is the one that “gives the law” to society and holds it in its nature “to will and command” (Kutler 33-34). Accordingly, the judiciary receives the law and interprets it. Inevitably, judges must refer to the constitution in order to correctly interpret the laws that are issued unto them, yet this is done with an inferior power than that of the legislature for it does not involve revision of constitutionality but in application of constitutional statutes. Yet, the legislature derives such supremacy in the government from the sovereignty invested unto it by the people. The legislature is sovereign because it is the branch that best represents the will of the people. A government in which the legislature is sovereign is consistent with the ideal of a government of the people, by the people, and for the people, as it involves the direct embodiment of the popular will through popular sovereignty.
Although the people confer the legislature with sovereign power, it is to be limited and checked by the people themselves; in contrast, judicial review does not offer the same check on the judiciary. The constitution was established as the best articulation of the will of the people, thus it is to preside over government proceedings. Though, all the different bodies of the government must operate in agreement with the constitution, none are infallible and thus their actions may differ from the standards set by the constitution. Particularly, legislations issued by the legislative branch may differ and even conflict with the constitution. In such cases, the constitution must prevail as superior law and the legislature must in turn submit its power to it. Judicial review would establish the Supreme Court as an arbitrator in such cases. Even though, the legislature and the constitution may be in disagreement, these powers are not to resolve their conflict before the judiciary for it is not judicial business to pass judgment on the actions of the legislature. Consistently, the judiciary has no authority on legislative proceedings, like the legislature has no jurisdiction on judicial procedures. Furthermore, since legislative sovereignty is derived from the people, the people are the ones who are to set a limit on legislative abuses. Hence, public opinion is to check the constitutionality of legislative actions. Public opinion is the weapon of the people that protects them from legislative abuses and ensures the constitutionality of legislative actions and it is exercised through suffrage. Though the legislature may be the sovereign branch in the government, true sovereignty lies within the people. The right to vote on representation in the legislature confirms popular sovereignty. Moreover, through judicial review, the people may not directly influence the acts of the judiciary and, thus, they are not allowed to assert their sovereign right to limit and check government actions. By deriving its power form the people, the legislature must answer directly to the people for its actions, and public opinion serves as a limitation and check on its actions to prevent abuses and ensure agreement with the constitution.
In our modern era, it is of grave importance to identify the proper roles and powers that each of the separate branches of the government hold. Furthermore, the exercise of true sovereignty lies in the people and not the government, for they are the ones who decide on who to invest it through suffrage. Judicial review represents a digression from the constitutional duties of the judiciary, as supreme power is assigned to the single branch that is most disconnected from the people and thus acts not in favor of the will of the people. The constitution is the best articulation of the will of the people and true sovereignty is claimed by the people’s right to vote. This right is thus exercised upon electing the legislature, which must then act according to public opinion and issue legislations according to the constitution itself. Finally, while the constitution assigns certain powers to the judiciary, it states that the judiciary is bound to the constitution and laws of the nation. Any such power that grants the judiciary a supreme decision over any other branch, such as judicial review, is overstepping the constitution and the popular will. In the future, investing the legislature with its true power will in turn give back to Americans their true sovereignty.