Judicial review is a key concept in policy making and in changing the meaning or intent of the Constitution. Although not specifically mentioned in the Constitution, it is implied throughout.

Federalist Paper #78 discusses the need for Judicial Review and in it Publius stresses that the Judiciary is by far the weakest of the three branches proposed in the Constitution. Because he believes the Judiciary is the “least dangerous” of the branches, he addresses the concerns of the anti-Federalists regarding the issue of lifetime appointments of Supreme Court Justices.

Publius argues that since the justices are appointed for life they are free from political meddling, and since they are not elected, they would be protected from negative public opinion and pressure. He points out that the Judiciary lacks the capacity to injure as much as the other branches because it can only pass judgments – its only role is to point out the constitutionality of a given law.

The first use of Judicial Review was in 1803 under the famous Marbury vs. Madison decision. In that case, outgoing President John Adams had promised a commission of Justice of the Peace in the District of Columbia as part of what were called “midnight appointments” at the very end of the Adams administration.

When the incoming Jefferson administration took over and failed to deliver his commission, Marbury sued James Madison (Jefferson’s Secretary of State). Marbury asked Chief Justice William Marshall to issue a Writ of Mandamus against Madison in order to force him to give Marbury his commission.

Chief Justice Marshall wanted to appear impartial, so he was in a quandary. He could have ruled against Madison and honor the Mandamus and thus appear to be weak, or he could rule against Marbury and look like a tool of Jefferson.

What he eventually did was compare the writ to Article III of the Constitution and the powers given there, and he decided that Congress didn’t have the power to issue the writ, so the end result was that the writ was ruled to be unconstitutional because he didn’t have the authority to issue it in the first place, even though Marbury was perfectly qualified and deserved the commission.

These powers were implicitly denied by Article III, so Marshall was able to save face by not ruling on it.

This was the first time an act of Congress had been reversed because it was considered unconstitutional, and it set an important precedent for future cases like Brown vs. Board of Education. In both the Marbury vs Madison case and Brown vs BoE, the Judiciary ruled that any interpretation of a law which contradicts the intent of the Constitution must be abolished.

Brown vs BoE determined that a previous ruling by the courts was unconstitutional due to the Equal Protection Clause, and therefore the case of Plessy vs Ferguson was over turned, reversing years of legalized segregation under the previous “separate but equal” doctrine.

The Machiavellian idea of red states versus blue states is at the heart of the concept of a divided government. Since the late ‘60s our country has been divided nearly equally politically and culturally along party lines, which only serves to increase the lack of trust Americans feel toward each other and toward politicians in general over the past few years. The philosophy of ‘divide and conquer’ seems to be pivotal to the political elite in this country, and people have even grown to identify themselves and classify others as “red” and “blue” as well.

Voters have become more apathetic and hopeless when presented with growing evidence that both major parties are fundamentally the same, and are only interested in staying in power and further consolidating the nation’s wealth into fewer and fewer hands (theirs).

The fact that US elections have become so much more costly in recent years contributes further to this lack of trust and loss of respect people already feel for politicians, and the institutions they represent.

It is clear that nowadays only the very wealthy can even consider running for a major political office. I am tired of rich White guys who spend millions of dollars of their own money – by their own admission – on their campaigns, and yet still claim they represent the ‘little guy’ as they promise to fight those ‘fat-cats’ in Washington!

Give me a break.

If money wasn’t such an important factor in the outcome of elections, why is it nearly always the candidate who spends the most money wins? I think I can speak for a large segment of society when I say that this kind of behavior contributes to a further lack of trust in our elected officials.

Another specific consequence of the decline in trust and confidence in the government is the breakdown of the rule of law and the poor example many politicians set for their constituents. Citizens see their trusted community leaders commit crimes – often with relative impunity – so they think this type of behavior is acceptable: or at least they can use this as an excuse.

A second and more troubling consequence of voter apathy is the low voter turnout of recent years. Until 2008 and the candidacy of Barack Obama, voter rolls had been falling due to the perception that the Democrats and Republicans were basically different branches of the same party and simply playing the role of loyal opposition while not really trying to solve any important problems.

Americans tend to base their perception of individual candidates at a more emotional, gut-level, rather than based on their stance on actual issues, unfortunately.

A candidate’s physical appearance, their ability to project a “regular guy” image, and their overall image itself is far more important than real-live accomplishments or qualifications to most of my fellow citizens.

We also tend to root for the home team, so our perception of local politicians is generally going to be more favorable – especially if we voted for them!