It was 75 years ago in a slender book called Majority Rule and Minority Rights, that the great American historian Henry Steele Commager delivered a devastating critique of judicial review – the extraordinary power, vested in the supreme court, to declare legislative acts unconstitutional. In theory, judicial review empowers the members of the court, insulated from the political fray by life tenure, to safeguard the rights of vulnerable minorities.
“Rubbish,” said Commager. Canvassing American history, Commager insisted that the only “minority” rights the court had protected were those of the wealthy. The court had consistently “put property rights above human rights”.
Commager was writing against the backdrop of the Great Depression, when a hidebound supreme court aggressively rejected early New Deal laws as unconstitutional. Not until 1937 did the court accept the basic proposition that the constitution permitted Congress to ease the economic suffering of millions.
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