The Anatomy of the State (LvMI)

by Murray N. Rothbard

All Americans are familiar with the process by which the construction of limits in the Constitution has been inexorably broadened over the last century. But few have been as keen as Professor Charles Black to see that the State has, in the process, largely transformed judicial review itself from a limiting device to yet another instrument for furnishing ideological legitimacy to the government’s actions. For if a judicial decree of “unconstitutional” is a mighty check to government power, an implicit or explicit verdict of “constitutional” is a mighty weapon for fostering public acceptance of ever-greater government power. Professor Black begins his analysis by pointing out the crucial necessity of “legitimacy” for any government to endure, this legitimation signifying basic majority acceptance of the government and its actions.21 Acceptance of legitimacy becomes a particular problem in a country such as the United States, where “substantive limitations are built into the theory on which the government rests.” What is needed, adds Black, is a means by which the government can assure the public that its increasing powers are, indeed, “constitutional.” And this, he concludes, has been the major historic function of judicial review.