About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

47 N.H. B.J. 52 (2006-2007)
Judicial Review and Its Limits - Part I (Legitimacy)

handle is hein.barjournals/newhbj0047 and id is 170 raw text is: U New Hampshire Bar Journal U Autumn 2006 By Attorney Eugene M. Van Loan III Merrill v. Sherburne' has long been celebrated as New Hampshire's version of Marbury v. Madison,2 i.e., the first instance of a court in New Hampshire to exercise the power of judicial review. Only recently, many of us have learned from several articles published in the New Hampshire Bar Journal that judicial reviewwas far from a novel proposition by the time that Merrill v. Sherburne was decided.' For ex- ample, as was pointed out in the BarJournal's 2002 publica- tion of the UNH masters' thesis of Richard M. Lambert, sev- eral of our Superior Courts had exercised the power more than three decades previously' Similarly, earlier this year, the Joumal reprinted a 1995 article by Timothy Lawrie which had originally appeared in the American Journal of Legal History.5 In his article, Interpretation andAuthority: Sepa- ration of Powers and the Judiciary's Battle for Indepen- dence in New Hampshire, Mr. Lawrie recounts the details of several previously unpublished New Hampshire Supreme Court cases - all predating Merrill - wherein the Supreme Court exercised the power of judicial review.6 Both Mr. Lambert's thesis and Mr. Lawrie's article de- served publication in New Hampshire simply on account of their scholarly contributions to our historical understanding of the constitution under which we live. However, as I noted in my introduction to the reprint of Mr. Lawrie's article, when it comes to judicial review, the lessons of history raise some interesting challenges to the conventional wisdom about its proper role in our modem political system.7 Suffice it to say that what I call in this paper horizontal judicial review- the power of the judiciary to review the acts of its co-equal branches of government for consistency with the Constitution - has become much more of a force in our modem political system than it ever was in the era of the Founders. Whereas the judiciary initially invoked its author- ity quite sparingly, the phenomenon of some court striking down a statute or declaring the action of an executive official unconstitutional is today almost a matter of routine. But it is not just the quantity of judicial review which has changed; its quality has also changed. For example, in the early years of the Republic, it was conventional wisdom that the power- and the responsibility- to make judgments about constitutionality rested with all departments of gov- ernment. Accordingly, it was far from accepted that judicial determinations of constitutionality were binding upon the other branches. By way of contrast, the judicial review of today not only asserts that constitutional decisions by courts are final in that they are conclusive as to the parties to the case at hand, but it also claims that these decisions are supreme in the sense of being binding upon everyone else. Indeed, some judges and academics have even gone so far as to claim that judicial review is exclusive, i.e., that the only branch of government which has the authority to make de- terminations of constitutionality is the judicial branch. Simi- larly, whereas certain subjects (so-called political questions) were originally thought to be exempt from judicial review, modem judicial review aspires to be universal in that it recognizes virtually no limits. And, finally, whereas early American political theory postulated that the judicial branch ultimately depended upon the cooperation of the other two branches for the enforcement of its orders in constitutional cases, some modem judges have even claimed to be able to wield the power of the purse and the power of the sword to enforce their orders. If judicial review is really final, supreme, exclusive, uni- versal and self-executing, it is no longer merely judicial re- view. It is something much more muscular. Indeed, some critics have dubbed it judicial sovereignty. In any case, whatever it is called, the modem brand of judicial review is exemplified by the self-assertive decisions increasingly being issued by state supreme courts in cases involving the funding of public education. Two of the most egregious examples are the 2003 decision of the Nevada Su- preme Court in the case of Guinn v. The Legislature of the State of Nevada' and the decision last year by the Kansas Supreme Court inMontoy v. State ofKansas.9 In the former, the court held that a provision of the Nevada Constitution requiring the legislature to provide for a uniform system of common schools negated another provision in the same Judicial Review and Its Limits Part I (Legitimacy) m 52 m

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Already a HeinOnline Subscriber?

Log In

profiles profiles most