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Friends โ Reย a living or dead Constitution.ย
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The Grand Canyonesque ideological divide between Left and Right is whether the Constitution simply means what is says and should be adhered to โ or whether it may be ignored or dismissed as needed to further leftistsโ political goals.ย There is now an absurd bit of fiction regularly propagated by the left-leaning mainstream-media which insists that โjudicial activismโ comes equally from both sides of the aisle.ย Anyone wishing to hold on to that fantasy should read no further.
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So . . . I sincerely hope some of you will take the time to carefully and open-mindedly read these excerpts from an essay by Lino Graglia -- the Dalton Cross Professor of Law at the University of Texas.ย (Occasional emphasis via underlining and photo-satire stuff courtesy of yours truly.).
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The Left, not long ago screaming bloody "judicial-activism" murder over the Roberts' Court recent Citizens United decision, allowing corporations to voice their political speech via campaign financing, did the same as Obamacare faced the possibility of being declared unconstitutional.ย This, they howled, was blatant judicial activism.ย But it was not.ย
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First -- From Robert F. Nagel is the Rothgerber professor of constitutional law at the University of Colorado Law School.
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"Stevensโs dissent in Citizens United is extraordinary. Fully 90 pages long, it attacks virtually every aspect of the majority opinion . . . It is also radical in its implications.
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Consider, for example, Justice Stevensโs treatment of historical evidence about whether the framers intended the Free Speech Clause to protect corporations. Stevens acknowledges that his research has not identified any statements โfrom the founding era showing that corporations were understood to be excluded from the First Amendmentโs . . . guarantee.โ He then notes that โJustice Scalia adduces no statements to suggest the contrary proposition.โ He concludes that โwe cannot be certain how a law [restricting corporate speech] meshes with the original meaning of the First Amendment.โ
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It is not novel for a judge to decide that history does not resolve a particular constitutional argument. But Stevens makes a much broader point. Taking aim at Scaliaโs basic interpretive philosophy, Stevens questions whether an โimpartial judgeโs application of [historical materials] is likely to yield more determinate answers . . . than his or her views about sound policy.โ
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Thus, Stevens is unabashedly proposing that a judgeโs beliefs about โsound policyโ provide as much constraint on judgesโ discretion as does evidence about what the words in the Constitution were intended to mean. This turns normal assumptions upside down. Usually it is thought that a judgeโs opinions about policy constitute the discretion that needs to be constrained by legal standards like original meaning. . .ย He even suggests that a judgeโs views about sound policy should be at least as โdecisiveโ in determining constitutional meaning as evidence about the Foundersโ intentions."
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Constitutional Law Without the Constitution:ย The Supreme Courtโs Remaking of America โ Lino Graglia
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The function of law in a society, at least in a democratic society, is to express, cultivate, and enforce the values of the society as understood by the majority of its people.ย In our society today, this function has been perverted.ย Much of our most basic law, largely taken out of the hands of the people and their elected representatives by the Supreme Court, functions instead to overthrow or undermine traditional values, customs, and practices through the mechanism of judge-made constitutional law divorced from the Constitution.
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. . . The most striking thing about judicial review is that it is not explicitly provided for in the Constitution. . . If the framers โ the authors and , most important, the ratifiers of the Constitution โ had decided to grant the power, one would expect to see it, like the analogous presidential veto power, not only plainly stated but limited by giving conditions for its exercise and making clear provision for Congress to have the last word.ย It appears that the framers mistakenly envisioned the power as involving merely the application of clear rules to disallow clear violations, something that in fact rarely occurs.
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. . . Judicial activism can most usefully be defined as rulings of unconstitutionality not clearly required by the Constitution โ โclearlyโ because in a democracy the opinion of elected legislators should prevail over that of unelected judges in cases of doubt.ย Decisions overturning activist decisions should be seen, of course, as not activist but de-activist, as undoing activism and returning policy issues to the ordinary political process.ย
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All or almost all of the Supreme Courtโs rulings of unconstitutionality, beginning at least with the Warren Court, are examples of judicial activism โ usurpations of legislative power โ in that they were not clearly, and usually not even arguably, required by, and indeed were sometimes in violation of, the Constitution.ย It is not the power of judicial review as such, therefore, that accounts for the dominant policymaking role the Court has assumed in our society but the Courtโs abuse of the power.ย If the Court did in fact only what it invariably claims to do โ enforce the Constitution โ occasions for its invalidation of policy choices made in the ordinary political process would be rare enough to make judicial review a matter of little more than academic interest.ย The central question, of course, is why, in a supposedly democratic society, these judicial usurpations of legislative power to impose policy choices that legislators could not impose are permitted to continue.ย
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The Irrelevance of the Constitution to Constitutional Law
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. . . Not only is the Constitution short but very little of it is even purportedly involved in most so-called constitutionals cases.ย The great majority of such cases involve state, not federal, law, and nearly all of them purport to be based on a single constitutional provision, one sentence of the Fourteenth Amendment, which has in effect become our second Constitution, largely replacing the original.ย The all-important sentence provides that โno State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.โ
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The origin and purpose of this provision are not mysterious or obscure.ย The โone primary purposeโ of all the Civil War or Reconstruction Amendments โ the Thirteenth, Fourteenth, and Fifteenth โ the Court said in its first consideration of the question in the 1872 Slaughter-House Cases, โwithout which none of them would have been even suggestedโ, was โthe freedom of the slave race, the security and firm establishment of that freedom . . . โย The Thirteenth Amendment abolished slavery, the Fourteenth granted blacks basic civil rights (to own property, make contracts, have access to courts), and the Fifteenth added a political right, the right to vote.
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ย . . . The Court later converted the equal protection clause from a prohibition of racial discrimination into a prohibition of any discrimination โ for example, on the basis of sex, alienage, or illegitimacy โ that a majority of the justices considered โunreasonable.โย Since nearly all laws limit liberty (restrict conduct) and discriminate (classify), the Court in effect granted itself an unlimited power of judicial review by merely citing one or both of the clauses, enabling it to invalidate almost any law on no other basis than a disagreement by a majority of justices with the policy choice involved.ย ย ย
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. . . In its famous footnote four of the Carolene Products case, the Court announced that it would engage now in what might be called a โfunctionalโ judicial review, intervening in the political process, not necessarily because of the Constitution, but because of a belief that its intervention was โneededโ.
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It would intervene now, for example, to protect โdiscrete and insularโ minorities that it considered insufficiently protected by the political process and to improve the political process itself by correcting what it considered defects.ย The result was a 180-degree turn away from the Court as the protector of property rights and of the economic and social status quo โ to the Court as the champion of egalitarianism and the engine of social reform.
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. . . To this end the Court greatly increased the amount of constitutional language apparently available to it by announcing, in a series of decisions mostly in the 1960s, that the Fourteenth Amendmentโs due process clause โincorporatedโ โ that is, made applicable to the states โ most (though not all; the Court gets to choose) of the provisions of the first eight amendments.ย First among the many reasons to reject this implausible conclusion is that so basic a change in our federalist system should not be assumed unless stated in unmistakable terms.ย Further, the addition or expansion of constitutional restrictions should be disfavored because they limit self-government and, much worse, because in the hands of judges they inevitably evolve from legal rules to simple transferences of policymaking power.ย The historical evidence is strongly against the claim that the states that ratified the Fourteenth Amendment willingly and knowingly bestowed on the Court the enormous power it now exercises over them under the rubric of the selective incorporation doctrine.
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It is not clear, to say the least, that the First Amendmentโs prohibition of laws respecting an establishment of religion, for example, even if incorporated, prohibits a state from making provision for prayer in public schools or from allowing the display of the Ten Commandments in a courthouse.ย It is even less clear, in fact surely incorrect, that the First Amendmentโs protection of โthe freedom of speechโ was meant to protect nude dancing, flag burning, and political demonstrations in an elementary school classroom.
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. . . Even the selective incorporation doctrine and an expansive interpretation of the Bill of Rights provisions proved inadequate, however, to the justicesโ need to purport to find constitutional grounds to invalidate laws they strongly disapproved of.ย Griswold v. Connecticut, for example involved a challenge to Connecticutโs anticontraception law.ย Connecticut was not big enough for both Yale University and a law so offensive to the Yale law faculty (a member of which argued for the plaintiffs), and Connecticut proved no match for Yale in the Supreme Court.ย The Court, accordingly, in an opinion by Justice Douglas, a former Yale law professor, found that the law was unconstitutional but had some difficulty in stating the ground.
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. . . Douglas could hardly simply declare the law invalid because it was โunreasonableโ, and he explicitly declined to do so. . . The inconvenient fact that there was no relevant constitutional right Douglas overcame by imagining and enacting a new one, the right of โprivacyโ.ย Although this right could not be found in the Bill of Rights itself, it could be found, Douglas explained, in the โpenumbras, formed by emanationsโ from the Bill of Rights provisions.ย
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. . . Another way by which the Court purported to avoid acting as a superlegislature was by finding surprising new meanings in the equal protection clause.ย In Levy v. Louisiana, for example, it took the Court less than four pages of the United States Reports to overturn the centuries-old distinction in Anglo-American law, European civil law, and probably the law of all developed societies, between legitimate and illegitimate birth. . . It would be difficult to imagine a distinction that the Fourteenth Amendment was less meant to prohibit, but that is irrelevant to justices who see no need to look outside themselves for wisdom or authority.
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. . . Griswold and Levy exemplify Supreme Court decision making on matters of fundamental social importance on no basis other than the justicesโ arrogant confidence in the rightness of their policy preferences and willingness to impose them on their fellow citizens. . . Griswoldโs ludicrous but widely lauded invalidation of Connecticutโs anticontraception law emboldened the Court to go on to the next step of invalidating anti-abortion laws as well.ย In Roe v. Wade, these laws were also found to violate the right of privacy announced in Griswold, but the right was now said to be based not on any constitutional penumbra โ once was apparently enough for that joke โ but on a frank revival of substantive due process.ย An unlimited power to invalidate laws as โunreasonableโ (i.e., as contrary to a majority of the justicesโ policy preferences) was clearly a very bad thing, the justices and constitutional scholars had only shortly before agreed, but that was when in the hands of conservative justices the power was used as a brake on social change.ย In the hands of liberal justices, it became, they now also agreed, an indispensable means of achieving social reforms achievable in no other way.ย
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It is not possible to criticize the Courtโs explanation of the constitutional basis of Roe, because there is no explanation, only assertion.ย Surely no one believes that abortion became a constitutional right in 1973 because the Court discovered in the then-105-year-old due process clause of the Fourteenth Amendment something no one had noticed before.
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. . . That the irrelevance of the Constitution to the Courtโs abortion decisions is in no way unique can be seen in almost any of the Courtโs interventions in the political process.ย Consider, for example, that there was a time when the assignment of children to public schools on the basis of race was constitutionally permissible, a time when it was constitutionally prohibited, and a time, the present, when it is sometimes constitutionally required.ย That covers all the possibilities, yet in all that time, the Constitution was not amended in any relevant respect.ย An impartial observer would have no trouble concluding that the Constitution is not the operative variable.
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. . . Consider, finally, the Courtโs decisions holding unconstitutional, because prohibited by the First Amendment as โincorporatedโ into the Fourteenth, state-sponsored prayer in public schools, state assistance to religious schools, and the display of religious symbols on public property.ย These decisions are in a sense even less legitimate than, say, Griswold, Levy, or Roe.ย The purpose of the religion clause of the First Amendment was to preclude federal interference in matters of religion, leaving them exclusively to the states.ย While Griswold, Levy, and Roe are based on nothing in the Constitution, the Courtโs religion decisions are actually in violation of the very provisions on which they purport to be based.ย Similarly, the fact that the Constitution explicitly recognizes capital punishment in several places did not prevent Justices William J. Brennan, Thurgood Marshall, and Harry Blackmun from insisting that it is constitutionally prohibited.
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Constitutional law without the Constitution โ policymaking for the nation as a whole by majority vote of a committee of nine electorally unaccountable lawyers โ is the antithesis of the constitutional system, whose basic principles are representative self-government, federalism, and separation of powers.
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. . . The effect of the Courtโs interventions in the political process since the Warren Court has been overwhelmingly to undermine or overthrow traditional American beliefs and practices on basic issues of domestic social policy.
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. . . It has created and imposed on the states and the federal government a system of criminal procedure, with Miranda rights, exclusionary rules, innumerable appeals, and other impediments to law enforcement known to no other system of law.ย The result is seemingly interminable trials and retrials in which the question of guilt or innocence is often the least relevant consideration.ย
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. . . the Court has contributed substantially to the deterioration of the quality of life in our cities by seeing only oppression in traditional vagrancy control ordinances.ย โPoor people, nonconformists, dissenters, idlersโ, Justice Douglas instructed, cannot โbe required to comport themselves according to the lifestyle deemed appropriateโ by public authorities.ย
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. . . a state may not, the Court held in an opinion by Justice Sandra Day OโConnor, operate a nursing school for women even though it operated a co-ed nursing school as well.ย Not even a military school, the Court held in an opinion by Justice Ruth Bader Ginsburg, may operate an all-male institution consistent with the Fourteenth Amendment.
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. . . In Griggs v. Duke Power Co., a unanimous Court effectively converted Title VIIโs prohibition of racial discrimination into a requirement of discrimination by holding that Congress meant to forbid an employerโs use of such ordinary employment criteria as a verbal test or a high school education when the effect was to disproportionately disqualify blacks.ย In fact, Congress had specifically considered the issue, and made it clear that employers acting in good faith were free to set qualifications as high as they wished regardless of disproportionate racial effects.
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. . . The law of race discrimination with which we struggle today derives not from Brownโs prohibition of segregation, but from the Courtโs far more ambitious and questionable 1968 decision in Green v. County School Board to impose, without admitting it, a requirement of integration.ย The South had no sooner finally been made to comply with Brownโs prohibition of racial discrimination . . . than it was required to begin racially discriminating again, now to increase school racial integration or balance.ย
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For several reasons, the Court could not make this move openly.ย For one thing, it would be expected to explain the benefits of compulsory integration, something it has never attempted to do.ย More important, the requirement would have applied at once not just to the South but to the racial separation that exists in the school systems of all our major cities, which would have caused massive national resistance to the decision.ย The court imposed it, instead, in the North and West one city or area at a time, which operated to avoid unified opposition.ย Perhaps most important, the Court would have had to overrule or at least qualify what everyone, including the Congress, understood to be the nondiscrimination principle of Brown โ the last thing the Court wanted to do.
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The Court explicitly denied that it was imposing a requirement of integration in Green but imposed the requirement nonetheless by holding unconstitutional a racially imbalanced school system that concededly had ended all racial discrimination. . . Desegregation now meant not ending but practicing racial assignment.ย To this day, the Court insists that there is no constitutional requirement of integration or racial balance โ even while ordering that students be bused across citywide school districts that, like Denverโs, were never segregated, in order to increase racial balance.ย Rather than having to reverse Brown, the Court was thus able to wrap itself in the protective mantle of Brown, performing the feat, possible only for an institution both subject to no review and unscrupulous, of requiring racial discrimination in the name of prohibiting it.
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. . . The nightmare of the elite is that decision making on basic issues of social policy should fall into the hands of the American people.ย The American people favor capital punishment, restrictions on abortion, prayer in the schools, suppression of pornography, strict enforcement of criminal law, neighborhood schools, and so on, all anathema to the cultural elite.ย Could anyone really want to live, they wonder, in a society with such policies? . . . Nothing is more important to them, therefore, than that the power of the Court to invalidate policy choices made in the ordinary political process be defended and preserved.
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ย Lino A. Graglia -- This essay originally appeared in the February 1986 issue of Commentary.
Attorney General Edwin Meese's recent statement in a speech to the American Bar Association that judges should interpret the Constitution to mean what it was originally intended to mean probably did not strike most people as controversial. Nevertheless it brought forth immediate denunciation by a sitting Supreme Court Justice as "doctrinaire," "arrogant," and the product of "facile historicism." "It is a view," Justice William J. Brennan, Jr. said in a speech at Georgetown University, "that feigns self-effacing deference to the specific judgments of those who forged our original social compact," but that "in truth ... is little more than arrogance cloaked as humility" because it is not possible to "gauge accurately the intent of the Framers on application of principle to specific, contemporary questions."[1] The view is not only mistaken, but misguided, Justice Brennan continued, because it would require judges to "turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance."
What Is at Stake?
To state that judges should interpret the Constitution as intended by those who wrote and ratified it ("the Framers") is only to state the basic premise of our political-legal system that the function of judges is to apply, not to make, the law. Indeed, it would be difficult to say what interpretation of a law means if not to determine the intent of the lawmaker. Justice Brennan's angry attack on the obvious as if it were disreputable, soon joined by the attacks of his colleague Justice John Paul Stevens and a legion of media commentators, makes evident that much is at stake in this debate on a seemingly esoteric matter of constitutional interpretation. What is at stake is nothing less than the question of how the country should be governed in regard to basic issues of social policy: whether such issues should be decided by elected
representatives of the people, largely on a state-by-state basis, or, as has been the case for the last three decades, primarily by a majority of the nine justices of the United States Supreme Court for the nation as a whole.
The modern era of constitutional law began with the Supreme Court's 1954 decision in Brown v. Board of Education, holding compulsory school racial segregation and, it soon appeared, all racial discrimination by government, unconstitutional. The undeniable rightness of the decision as a matter of social policy, in effect ending legally imposed second-class citizenship for blacks, and its eventual acceptance by the public and ratification by Congress and the president in the 1964 Civil Rights Act, gained for the Court a status and prestige unprecedented in our history. The moral superiority of decision making by judges to decision making by mere "politicians" seemed evident. The result was to enable the Court to move from its historic role as a brake on social change to a very different role as the primary engine of such change.
In the years since Brown, nearly every fundamental change in domestic social policy has been brought about not by the decentralized democratic (or, more accurately, republican) process contemplated by the Constitution, but simply by the Court's decree. The Court has decided, on a national basis and often in opposition to the wishes of a majority of the American people, issues literally of life and death, as in its decisions invalidating virtually all restrictions on abortion and severely restricting the use of capital punishment. It has decided issues of public security and order, as in its decisions greatly expanding the protection of the criminally accused and limiting state power to control street demonstrations and vagrancy, and issues of public morality, as in the decisions disallowing most state controls of pornography, obscenity, and nudity. The Court has both prohibited the states from making provisions for prayer in the schools and disallowed most forms of aid, state or federal, to religious schools. It has required that children be excluded from their neighborhood public schools and bused to more distant schools in order to increase school racial integration; ordered the reapportionment of state and federal legislatures on a "one-man-one-vote" basis; invalidated most of the law of libel and slander; and disallowed nearly all legal distinctions on the basis of sex, illegitimacy, and alienage. The list could easily be extended, but it should be clear that in terms of the issues that determine the nature and quality of life in a society, the Supreme Court has become our most important institution of government.
Since his appointment to the Court by President Eisenhower in 1956, Justice Brennan has participated in all of the Court's major constitutional decisions, has consistently voted in favor of Court intervention in the political process, and has often been a leader on the Court in reaching the decision to intervene. Indeed, he has ordinarily differed with the Court only in that he would often go even farther in disallowing political control of some issues; he would, for example, go farther than the Court has in disallowing state regulation of the distribution of pornographic material and he would prohibit capital punishment in all cases. If the Court has been our most important institution of government for the past three decades, Justice Brennan โ although his name is probably unknown to the great majority of his fellow citizens โ has surely been our most important government official. To argue that the Supreme Court should confine itself or be confined to interpreting the Constitution as written is to undermine the basis of this status and challenge the legitimacy of his life's work.
The Power of the Supreme Court
Constitutional law is as a practical matter the product of the exercise of the power of judicial review, the power of judges, and ultimately of Supreme Court justices, to invalidate legislation and other acts of other officials and institutions of government as inconsistent with the Constitution. The central question presented by constitutional law โ the only question the great variety of matters dealt with under that rubric have in common โ is how, if at all, can such a power in the hands of national officials who are unelected and effectively hold office for life be justified in a system of government supposedly republican in form and federalist in organization? The power was not explicitly provided for in the Constitution and had no precedent in English law โ where Parliament, not a court, is said to be supreme โ which could well be taken as reason enough to assume that no such power had been granted.ย Alexander Hamilton argued for the power in The Federalist No. 78, however, and Chief Justice John Marshall established it in Marbury v. Madison in 1803 on the ground that it is inherent in a written constitution that declares itself to be supreme law. The argument is hardly unanswerable โ other nations have written constitutions without judicial review โ but judicial review limited to interpretation of the Constitution in accordance with the Framers' intent does obviate the problem of policy making by judges.
Constitutional limitations on popular government are undoubtedly undemocratic, even if they were themselves democratically adopted by a supermajority, but the only function of judges in exercising judicial review on the basis of a written constitution with determinate meaning would be the entirely judicial function of enforcing the Constitution as they would any other law. The judges, Hamilton assured the ratifying states, would have neither force nor will"; able to "take no active resolution whatever" in enforcing the Constitution, their power would be "next to nothing." "Judicial power," Marshall reiterated, "has no existence. Courts are mere instruments of the law, and can will nothing." The notion that a court has "power to overrule or control the action of the people's representatives," Justice Owen Roberts confirmed during the New Deal constitutional crisis, "is a misconception"; the Court's only function in a constitutional case is "to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former."
Even Justice Brennan purports to recognize what, as he notes, Alexander Bickel called "the counter-majoritarian difficulty" presented by judicial review. "Our commitment to self-governance in a representative democracy must be reconciled," Justice Brennan concedes, "with vesting in electorally unaccountable justices the power to invalidate the expressed desires of representative bodies on the ground of inconsistency with higher law." Supreme Court justices, he acknowledges at the beginning of his speech, echoing Judge Learned Hand, "are not platonic guardians appointed to wield authority according to their personal moral predilections." At several points he even seems to offer the standard justification for judicial review, that the judges merely interpret the written Constitution. He states, for example, that the duty of the judge is to "draw meaning from the text" and "remain faithful to the content" of the Constitution and that "the debate is really a debate about how to read the text, about constraints on what is legitimate interpretation." These statements are consistent with the remainder of his speech, however, only if reading or interpreting a document is considered indistinguishable from composing or rewriting it.
Unfortunately, however, the debate is not about how judges should read or interpret the text of the Constitution, but about whether that is what they should in fact confine themselves to doing in deciding constitutional cases. The view that the duty of judges is to read and interpret the Constitution โ to attempt to determine what the Framers intended to say โ is precisely the view that Justice Brennan seeks to rebut and derides as uninformed and misguided. The whole point of his
speech is that judges should not be confined to that task, for to so confine them would be to give them much too limited a role in our system of government and leave us insufficiently protected from the dangers of majority rule.
Justifying the Exercise of Power
Justice Brennan is far from alone today in his view of the proper role of judges in exercising judicial review and of the essential irrelevance of the Constitution to constitutional law.
It is, indeed, the view taken by most contemporary constitutional law scholars, who share the political ideology of the modern-era Supreme Court and see it as their professional duty to legitimize the fruits of that ideology. Because it has become increasingly difficult โ in fact, impossible โ to justify the Court's controversial decisions as the result of constitutional interpretation, the bulk of modern constitutional law scholarship consists of the invention and elaboration
of "noninterpretivist" or "non-originalist" theories of judicial review โ justifications for a judicial review that is not confined to constitutional interpretation in any sense that would effectively restrain judicial choice. Because the product of this review is nonetheless always called "constitutional law" and attributed in some way to the Constitution, the result is the paradox of noninterpretivist constitutional interpretation, constitutional law without the Constitution.
That more and more constitutional scholars, and now a Supreme Court justice, should come to recognize and acknowledge that the Supreme Court's constitutional decisions of recent decades cannot be justifiedon any other basis โ that they are not in fact based on the Constitution โ can be taken as a hopeful sign. Although the effort today in an increasing flood of books, articles, and speeches is to justify those decisions nonetheless, the inevitable failure of such efforts must, it would seem, eventually cause the enterprise to be abandoned and the fact that they cannot be justified in a system of self-government to be also
generally recognized and acknowledged. Justice Brennan has performed a
public service by bringing this extremely important and little
understood issue to greater public attention, conveniently summarizing
the standard arguments for "noninterpretivist" or "nonoriginalist"
review โ i.e., what is popularly referred to as "judicial activism" โ
and stating his own position with unusual, even if not total, clarity
and candor.
Defenders of judicial activism face the dilemma that, on the one hand,
judicial policy making cannot be defended as such in our system โ the
justices, even Justice Brennan must concede, are not authorized to enact
their "personal moral predilections" into law and must therefore claim
that their decisions derive somehow from the Constitution. On the other
hand, it happens that the Constitution is most ill-suited as a basis for
substantial judicial policy making by frequent judicial intervention in
the political process in the name of protecting individual rights from
majority rule. The central difficulty is that although the Constitution
does create some individual rights, they are actually rather few, fairly
well-defined, and rarely violated. The first task of the defender of
judicial activism, therefore, is to dispose of the Constitution as
unhelpful, inadequate, or irrelevant to contemporary needs. Reasons must
be found why the Constitution cannot be taken to mean what it rather
clearly is known to mean โ especially when read, as all writings must
be, in historical context โ or, even better, to have any determinate
meaning at all.
After disposing of the Constitution by depriving it of its historic
meaning, the next task of defenders of judicial activism is to imagine a
much more expansive, elevated, and abstract constitution that, having no
specific meaning, can be made to mean anything and serve therefore as
simply a mandate for judges to enact their versions of the public good.
In response to the objection that the very thinly veiled system of
government by judges thus achieved is obviously inconsistent with
democracy, the argument is made that the value of democracy is easily
overrated and its dangers many. The "very purpose of a Constitution," as
Justice Brennan states the standard argument, is to limit democracy by
declaring "certain values transcendent, beyond the reach of temporary
political majorities." In any event, no real inconsistency with
democracy is involved, the argument concludes, because the judges,
though unrestrained by the actual text of the Constitution, will
continue to be restrained by its principles, the adaptation of which to
changing circumstances is the true and indispensable function of judges.
Justice Brennan's speech can serve as a textbook illustration of each of
these moves.
Justice Brennan's attack on the notion of a constitution with a
determinable historic meaning could hardly be more thorough. First of
all, he finds that the Court's "sources of potential enlightenment" as
to the intended meaning are often "sparse or ambiguous." Even more
serious, the search for meaning is likely to be futile in any event
because even the Framers, he believes, usually did not know what they
meant: "Typically, all that can be gleaned is that the Framers
themselves did not agree about the application or meaning of particular
constitutional provisions, and hid their differences in cloaks of
generality." Then there is the question of "whose intention is relevant
โ that of the drafters, the congressional disputants, or the ratifiers
in the states?" Indeed, there is the most basic question of all, whether
the very notion of intent makes sense, "whether the idea of an original
intention is a coherent way of thinking about a jointly drafted document
drawing its authority from a general assent of the states." It is almost
as if the Constitution and its various provisions might have been
drafted and adopted with no purpose at all. Finally, there is the
problem that "our distance of two centuries cannot but work as a prism
refracting all we perceive." For all these reasons, the idea that
judicial review is legitimate only if faithful to the intent of the
Framers can be held only by "persons who have no familiarity with the
historical record."
Justice Brennan has still another, although it would seem unnecessary,
nail to put in the coffin of the now demolished Constitution. Should any
shred of constitutional meaning somehow survive the many obstacles he
sees to finding it, he would accord it little or no value. The world of
the Framers is "dead and gone," and it would not do, he believes, to
hold the Constitution captive to the "anachronistic views of long-gone
generations." "[A]ny static meaning" the Constitution "might have had"
in that dead world must, therefore, be of dubious relevance today. In
any event, "the genius of the Constitution rests," in his view, not in
any such meaning but in "the adaptability of its great principles to
cope with current problems and current needs." Strange as it may seem, a
writing can be great apart from its meaning and solely by reason of its
supposed ability to mean anything.
Most of Justice Brennan's objections regarding the difficulties of
constitutional interpretation have some basis, but they could also be
made in regard to interpretation of almost any law. For example, one can
almost always wish for a clearer or more detailed legislative history,
and it is always true that legislators cannot foresee and agree on every
possible application of a law. If these difficulties made the effort to
determine legislative intent futile, a system of written law would
hardly be possible. In any event, from the premise of an unknowable or
irrelevant Constitution, the conclusion should follow that judges have
no basis or justification for declaring laws unconstitutional, not that
they are therefore free to invalidate laws on some other basis and still
claim to be interpreting the Constitution.
Most important, whatever the difficulties of legal interpretation, they
have little or no relevance to actual constitutional decision making by
the Supreme Court because no issue of interpretation, no real dispute
about the intended meaning of the Constitution, is ordinarily involved.
For example, the Constitution contains no provision mentioning or
apparently in any way referring to the authority of the states to
regulate the practice of abortion. However one might undertake to defend
the Court's abortion decisions, it does not seem possible to argue that
they are the result of constitutional interpretation in any non-fanciful
sense. As another example, although the Constitution does mention
religion, no process that could be called interpretation permits one to
go from the Constitution's protection of religious freedom from federal
interference to the proposition that the states may not provide for
prayer in the schools.
A constitution so devoid of ascertainable meaning or contemporary
relevance would seem quite useless as a guide to the solution of any
contemporary problem and certainly as a written law enforceable by
judges. The judges might as well be told to enforce a document written
in an unknown language or, more in keeping with Justice Brennan's view,
in disappearing ink. Having effectively eliminated the actual
Constitution, however, Justice Brennan proceeds to remedy the loss โ
judicial activism cannot proceed with no constitution at all โ by
imagining and substituting a much more impressive, inspiring, and
usefully uncertain one.
The Constitution as Written
The constitution of Justice Brennan's vision is undoubtedly a wonderful
thing, one of "great" and "overarching" principles and "majestic
generalities and ennobling pronouncements [that] are both luminous and
obscure." It is nothing less grand than the embodiment of "the
aspiration to social justice, brotherhood, and human dignity that
brought this nation into being," "a sublime oration on the dignity of
man," and "a sparkling vision of the supremacy of the human dignity of
every individual." Justice Brennan accurately reflects current
constitutional law scholarship, here as throughout his speech, by seeing
the Constitution as simply "the lodestar for our aspirations." It is a
source of constant wonderment that scholars and judges of otherwise the
most secular and rationalist turn of mind can grow mystical when
discussing the Constitution.
The temptation is strong, of course, to dismiss Justice Brennan's
rapturous statements as mere flights of poetic fancy or Utopian ecstasy,
obviously not meant as serious descriptions or explanations of the
Constitution. The fact remains, however, that this view of the
Constitution is the only justification offered by him, or other
contemporary defenders of judicial activism, for the Court's assumption
and exercise of enormous government power. Fanciful as it may seem, a
constitution that is simply the embodiment of "our," or at least his,
aspirations accurately describes the constitution he has been enforcing
for nearly three decades to override the will of the people of this
country on issue after issue. It cannot be too strongly emphasized,
therefore, that the Constitution we actually have bears almost no
relation to, and is often clearly irreconcilable with, the constitution
of Justice Brennan's vision. No more is necessary to rebut all
contemporary defenses of judicial activism than that a copy of the
Constitution be kept close at hand to demonstrate that the defenders of
judicial activism are invariably relying on something else.
Although it may come as something of a disappointment to some, an
"aspiration for social justice, brotherhood, and human dignity" happens
not to have been what brought this nation, or at least the government
founded on the Constitution, into being. The convention to revise the
Articles of Confederation was called and the Constitution was drafted
and ratified not to provide additional protections for human rights โ on
the contrary, the stronger national government created by the
Constitution was correctly seen as a potential danger to human rights โ
but almost entirely for commercial purposes. The primary motivating
force for the creation of a stronger national government was the felt
need of a central authority to remove State-imposed obstacles to
interstate trade. How little the Constitution had to do with aspirations
for brotherhood or human dignity is perhaps most clearly seen in its
several provisions regarding slavery. It provides, for example, that a
slave was to be counted as three-fifths of a free person for purposes of
representation and that slaves escaping to free states were nonetheless
to be returned to their masters. It is not, as Justice Brennan would
explain this, that part of the "egalitarianism in America has been more
pretension than realized fact," but that there was at the time the
Constitution was adopted very little pretension to egalitarianism, as is
illustrated by, for example, the widespread use of property
qualifications for voting.
Given the original Constitution's limited and mundane purposes, it is
not surprising that it provides judges with little to work with for the
purpose of advancing their personal notions of social justice. The
Constitution is, first of all, a very short document โ easily printed,
with all twenty-seven amendments and repealed matter, on fewer than
twenty pages โ and apparently quite simple and straightforward, not at
all like a recondite tome in which many things may be found with
sufficient study. The original Constitution is almost entirely devoted
to outlining the structure of the national government and setting forth
the sometimes complicated methods of selection, and the
responsibilities, of members of the House of Representatives, senators,
the president, and Supreme Court justices. It contains few provisions
protecting individual rights from the national government โ federalism,
i.e., limited national power and a high degree of local autonomy, was
considered the principal protection โ and even fewer restrictions on the
exercise of state power. As to the national government, criminal trials
are to be by jury, treason is narrowly defined, the writ of habeas
corpus is protected, and bills of attainder and ex-post-facto laws are
prohibited. The prohibition of bills of attainder and ex-post-facto laws
is repeated as to the states, which are also prohibited from
discriminating against citizens of other states. Finally and by far the
most important in terms of actual challenges to state laws, the Framers,
nicely illustrating their lack of egalitarian pretension, undertook to
protect creditors from debtor-relief legislation by prohibiting the
states from impairing contract rights.
The first eight of the first ten amendments to the Constitution, the
Bill of Rights adopted in 1791, provide additional protections of
individual rights, but only against the federal government, not the
states, and these, too, are fewer than seems to be generally imagined
and certainly fewer than is typical of later declarations of rights,
such as in the United Nations Charter. In terms of substantive rights,
the First Amendment prohibits Congress from establishing or restricting
the free exercise of religion โ the main purpose of which was to leave
matters of religion to the states โ and from abridging the freedom of
speech, press, or assembly. In addition, a clause of the Fifth Amendment
prohibits the taking of private property without just compensation; the
Second Amendment, rarely mentioned by rights enthusiasts, grants a right
to bear arms; and the Third Amendment, of little apparent contemporary
significance, protects against the forced quartering of troops in
private homes. The Seventh Amendment, requiring jury trials in civil
cases involving more than twenty dollars, is hard to see today as other
than an unnecessary inconvenience. The remaining provisions (search and
seizure, grand-jury indictment, double jeopardy, privilege against self-
incrimination, due process, jury trial, right to counsel and to confront
adverse witnesses, and cruel and unusual punishment) are related to
criminal procedure.
Additional protections of individual rights are provided by the post-
Civil War Amendments. The Thirteenth Amendment prohibits slavery and the
Fifteenth prohibits denial of the right to vote on grounds of race. The
great bulk of constitutional litigation concerns state laws and nearly
all of that litigation purports to be based on a single sentence of the
Fourteenth Amendment and, indeed, on one or the other of two pairs of
words, "due process" and "equal protection." If the Constitution is the
embodiment of our aspirations, it must have become so largely because of
those four words. The clear historic purpose of the Fourteenth
Amendment, however, was to provide federal protection against certain
state discriminations on the basis of race, historically our uniquely
intractable problem, but not otherwise to change fundamentally the
constitutional scheme. Finally, the Nineteenth Amendment protects the
right to vote from denial on grounds of sex, and the Twenty-seventh from
denial on grounds of age for persons over eighteen.
The Constitution's protections of individual rights are not only few but
also, when read in historical context, fairly clear and definite. State
and federal legislators, all of whom are American citizens living in
America and generally at least as devoted as judges to American values,
have, therefore, little occasion or desire to violate the Constitution.
The result is that the enactment of a clearly unconstitutional law is an
extremely rare occurrence: the clearest example in our history perhaps
is a 1933 Minnesota debtor-relief statute plainly prohibited by the
contract clause, although, as it happens, the Supreme Court upheld it by
a five-to-four decision. If judicial review were actually confined to
enforcing the Constitution as written, it would be a much less potent
force than the judicial review argued for and practiced by Justice
Brennan.
The Constitution is undoubtedly a great document, the foundation of one
of the freest and most prosperous nations in history. It does not
detract from that greatness to point out that it is not, however, what
Justice Brennan would make of it, a compendium of majestic generalities
and ennobling pronouncements luminous and obscure; indeed, its greatness
and durability surely derive in large part from the fact that the
Framers' aims were much more specific and limited. Far from intending to
compose an oration to human dignity, the Framers would have considered
that they had failed in their effort to specify and limit the power of
the national government if the effect of the Constitution should be to
transfer the focus of human-rights concerns from the state to the
national level. The Framers' solution to the problem of protecting human
freedom and dignity was to preserve as much as possible, consistent with
national commerce and defense requirements, a system of decentralized
democratic decision making, with the regulation of social conditions and
personal relations left to the states. Justice Brennan's solution means
virtually unlimited Supreme Court power to decide basic social issues
for the nation as a whole, effectively disenfranchising the people of
each state as to those issues, and is directly contrary to the
constitutional scheme.
The Right of Self-Government
Judicial review on the basis of a constitution divorced from historical
meaning and viewed, instead, as simply "the lodestar for our
aspirations" is obviously a prescription for policy making by judges. It
should therefore be defended, if at all, as such, free of obfuscating
references to "interpretation" of the Constitution. The only real
question it presents is, why should the American people prefer to have
important social-policy issues decided for the whole nation by the
Supreme Court โ a committee of nine lawyers unelected to and essentially
unremovable from office โ rather than by the decentralized democratic
process? Justice Brennan's answer to this question is, in essence, why
not? The argument that judicial interpretation of the Constitution in
accordance with the Framers' intent is essential for "depoliticization
of the judiciary," he points out, has its own "political underpinnings";
it "in effect establishes a presumption of resolving textual ambiguities
against the claim of constitutional right," which involves "a choice no
less political than any other."
Justice Brennan is certainly correct that the presumption of
constitutionality accorded to challenged acts of government officials
has a political basis, but it is surprising that he should find "far
from clear what justifies such a presumption." What justifies it is the
basic premise of democratic government that public-policy issues are
ordinarily to be decided through the electoral process, not by unelected
judges; that constitutional restrictions on representative government โ
even if, unlike judge-made restrictions, they were once democratically
adopted โ are the exception, not the rule. To refuse to assume the
validity of the acts of the electorally responsible officials and
institutions of government is to refuse to assume the validity of
representative self-government. It has, therefore, from the beginning
been considered the bedrock of constitutional litigation that one who
would have a court invalidate an act of the political branches must
assume the burden of showing its inconsistency with the Constitution,
ordinarily a most difficult task. By reversing the presumption of
constitutionality, Justice Brennan would simply reject political
decision making as the norm and require elected representatives to
justify their policy choices to the satisfaction of Supreme Court
justices, presumably by showing that those choices contribute to the
justices' notion of social progress.
Justice Brennan would justify the judicial supremacy he favors on the
not entirely consistent grounds that, on the one hand, the justices are
the true voice of the people and, on the other, that the people are in
any event not always to be trusted. "When justices interpret the
Constitution," Justice Brennan assures us, "they speak for their
community, not for themselves alone" and "with full consciousness that
it is, in a very real sense, the community's interpretation that is
sought." Apart from the fact that no question of constitutional
interpretation is in fact involved in most "constitutional" cases โ the
judges do not really decide cases by studying the words "due process" or
"equal protection" โ the community is, of course, fully capable of
speaking for itself through the representatives it elects and maintains
in office for that purpose. Justice Brennan does not explain why he
thinks the community needs or wants unelected judges to speak for it
instead or why the judges can be expected better to reflect or express
the community's views.
The actual effect of most judicial rulings of unconstitutionality is, of
course, not to implement, but to frustrate the community's views. For
example, Justice Brennan would disallow capital punishment as
constitutionally prohibited despite not only the fact that it is
repeatedly provided for in the Constitution, but also the fact that it
is favored by a large majority of the American people. In some cases,
however, he explains, a justice may perceive the community's
"interpretation of the text to have departed so far from its essential
meaning" that he "is bound, by a larger constitutional duty to the
community, to expose the departure and point toward a different path."
On capital punishment, Justice Brennan hopes to "embody a community
striving for human dignity for all, although perhaps not yet arrived."
Interpreting an aspirational constitution apparently requires prescience
as well as a high degree of self-confidence.
The foundation of all defenses of judicial activism, however, is not any
fanciful notion that the judges are the true voice of the people, but on
the contrary, the conviction that the people and their elected
representatives, should not be permitted to have the last word. Rarely
has this conviction, common among our intellectual elite, been expressed
with more certainty than in Justice Brennan's speech. Judicial
acceptance of the "predominant contemporary authority of the elected
branches of government" must be rejected, he argues, for the same reason
he rejects judicial acceptance of the "transcendent historical authority
of the Framers." That reason, it now appears, is not so much that
original intent is unknowable or irrelevant as that its acceptance as
authoritative would be inconsistent with his notion of "proper judicial
interpretation" of the Constitution because it would leave judges with
too little to do. "Faith in the majoritarian process," like fidelity to
original intent, is objectionable, he is frank to admit, simply because
it "counsels restraint." It would, he points out, lead the Court
generally to "stay its hand" where "invalidation of a legislature's
substantive policy choice" is involved. Justice Brennan's confidence
that his university audience shared his suspicion of democracy and
distrust of his fellow citizens was such as to put beyond need of
argument the unacceptability of a counsel of restraint by Supreme Court
Justices in deciding basic issues of social policy.
Legislative supremacy in policy making is derided by Justice Brennan as
the "unabashed enshrinement of majority will." "Faith in democracy is
one thing," he warns, but "blind faith quite another." "The view that
all matters of substantive policy should be resolved through the
majoritarian process has appeal," he concedes, but only "under some
circumstances," and even as so qualified "it ultimately will not do." It
will not do because the majority is simply not to be trusted: to accept
the mere approval of "a majority of the legislative body, fairly
elected," as superior in public-policy issues would be to "permit the
imposition of a social-caste system or wholesale confiscation of
property," a situation "our Constitution could not abide." How a people
so bereft of good sense, toleration, and foresight as to adopt such
policies could have adopted the Constitution in the first place is not
explained. Justice Brennan seems to forget that if the Constitution
prohibits such things โ indeed, if it is an oration to human dignity, as
he maintains โ it must be because the American people have made it so
and therefore, it would seem, can be trusted. It cannot be Justice
Brennan's position that political wisdom died with the Framers and that
we are therefore fortunate to have their policy judgments to restrain
us; he rejects those judgments as unknowable or irrelevant. Like other
defenders of judicial activism, however, he seems to view the
Constitution not as an actual document produced by actual people but as
a metaphysical entity from an extraterrestrial source of greater
authority than the mere wishes of a majority of the American people,
which source, fortunately, is in effective communication with Supreme
Court Justices.
The social-caste system feared by Justice Brennan would probably be
prohibited by the post-Civil War amendments, without undue stretching,
and confiscation of property by the national government โ though not by
the states โ would be prohibited by the just-compensation clause of the
Fifth Amendment. (These constitutional provisions, it may be noted in
passing, would operate as impediments to such policies, providing
grounds for opposing arguments, even if they were not judicially
enforceable.) The real protection against such fears, however โ and
columnist Anthony Lewis's similar fear that without activist judicial
review Oregon might establish the Reverend Sun Myung Moon's Unification
Church as the official state religion โ is simply the good sense of the
American people. No extraordinary degree of confidence in that good
sense is necessary in order to believe that these and similarly
outrageous policies that are invariably offered as providing an
unanswerable justification
for judicial activism are so unlikely to be adopted as not to be a
matter of serious concern. If they should be a matter of concern
nonetheless โ if, for example, it is truly feared that the people of
some state might establish a church and believed that no state should be
free to do so โ the appropriate response would be the adoption of a
constitutional amendment further limiting self-government in the
relevant respects. To grant judges an unlimited power to rewrite the
Constitution, Justice Brennan's recommended response would be to avoid
largely imaginary dangers of democratic misgovernment by creating a
situation in which judicial misgovernment is guaranteed.
Judicial activism is not necessary to protect us from state-established
churches, favored by almost no one, but it does operate to deprive the
people of each state of the right to decide for themselves such real
issues as whether provision should be made for prayer in the public
schools. In any event, the issue presented by contemporary judicial
activism is not whether majority rule is entirely trustworthy โ all
government power is obviously dangerous โ or even whether certain
specific constitutional limitations on majority rule might not be
justifiable; the issue is whether freewheeling policy making by Supreme
Court justices, totally centralized and undemocratic, is more
trustworthy than majority rule.
Defenders of judicial activism invariably match their skepticism about
democratic policy making with a firm belief in the possibility and
desirability of policy making on the basis of principle. To free
judicial review from the constraint of a constitution with a determinate
meaning is not to permit unrestrained judicial policy making in
constitutional cases, it is argued, for the judges will continue to be
constrained by the Constitution's principles, which, like the smile of
the Cheshire cat, somehow survive the disappearance of the
Constitution's text. According to this argument, judicial activism
amounts to nothing more than the adaptation and application of these
basic principles to changing circumstances, a necessary task if the
Constitution is to remain a "living document" and a contributor rather
than an obstacle to the national welfare. Thus, judicial activism is
necessary in Justice Brennan's view, as already noted, if we are not to
"turn a blind eye to social progress and eschew adaptation of
overarching principles to changes of social circumstance" and because
the genius of the Constitution rests not in what, if anything, the
Framers actually intended to provide, but in the "adaptability of its
great principles to cope with current problems and current needs."
The argument that judges are constrained by constitutional principles,
even though not by the constitutional text, bears no relation to
reality. In the first place, it is not possible to formulate useful
constitutional principles apart from or beyond the Constitution's actual
provisions. The Constitution protects certain interests to a certain
extent, from which fact the only principle to be derived is that the
Constitution does just that. An even more basic fallacy is the
argument's assumption that the solution of social problems lies in the
discovery, adaptation, and application of preexisting principles to new
situations. Difficult problems of social choice arise, however, not
because of some failure to discern or adapt an applicable principle, but
only because we have many principles, many interests we regard as
legitimate, and they inevitably come into conflict. Some interests have
to be sacrificed or compromised if other interests are to be protected โ
for example, public demonstrations will have to be regulated at some
point in the interest of maintaining public order โ and there is no
authoritatively established principle, rule, or generality that resolves
the conflict. If there were such a principle, the conflict would not
present a serious problem, but would be a matter that has already been
decided or that anyone can decide who can read and reason. Value
judgments have to be made to solve real policy issues, and the meaning
of self-government is that they are to be made in accordance with the
collective judgment of those who will have to live with the results.
There is also very little basis for Justice Brennan's apparent belief
that judicial review confined to the Constitution as written would
somehow be incompatible with social progress โ unless social progress is
simply defined as the enactment of his views. The Constitution does
contain several provisions that we would probably be better off without,
for example, the Seventh Amendment's requirement of a jury trial in
federal civil cases involving more than twenty dollars and the Twenty-
second Amendment's limitation of presidents to two terms. Apart from the
fact, however, that the Constitution, of course, provides procedures for
its amendment โ it can be updated if necessary without the Court's help
โ judicial activism has not generally served to alleviate the
undesirable effects of such provisions. In any event, the Constitution's
restrictions on self-government are, as already noted, relatively few
and rarely such as a legislature might seek to avoid. Rarely if ever
will adaptation of the Constitution's overarching principles, if any, be
necessary in order to permit a legislature to implement its views of
social progress.
Indeed, on the basis of our actual constitutional history โ which
includes the Supreme Court's disastrous decision that Congress could not
prohibit the extension of slavery, helping after the Civil War bring on
the decision that Congress could not prohibit racial segregation in
public places โ it is possible to believe that social progress might go
more smoothly without the Court's supposed adaptations of principles. If
the Constitution can be said to have an overarching principle, the
principle of federalism, of decision making on most social-policy issues
at the state level, is surely the best candidate, and that principle is
not adapted or updated but violated by the Court's assertion of power to
decide such issues. Far from keeping the Constitution a "living
document," judicial activism threatens its demise.
Whatever merit Justice Brennan's justifications for judicial activism
might have in theory, they do not seem relevant to the judicial activism
actually practiced by the Supreme Court for the past three decades. It
would be very difficult to justify the Court's major constitutional
decisions during this period, and particularly its most controversial
decisions, on any of the grounds Justice Brennan suggests. It would not
seem possible to argue, for example, that the justices spoke for the
community, not for themselves, in reaching their decisions on abortion,
busing, criminal procedure, and prayer in the schools. Nor does it seem
that any of those decisions can be justified as providing a needed
protection from a possible excess of democracy, as merely delaying
effectuation of the aberrational enthusiasm of "temporary political
majorities" until they could return to their senses. Judicial review
may, as Chief Justice Harlan Fiske Stone put this standard
rationalization, provide the people with an opportunity for a "sober
second thought," but no amount of thought or experience is likely to
change the view of the vast majority of the American people that, for
example, their children should not be excluded from their neighborhood
public schools because of their race or that no new protections of the
criminally accused should be invented with the effect of preventing the
conviction and punishment of the clearly guilty.
Finally, the contribution of most of the Court's constitutional
decisions of recent decades to social progress โ for example, its
decision that California may not prohibit the parading of vulgarity in
its courthouses or that Oklahoma may not impose a higher minimum
drinking age on men than on women โ is at best debatable. Very few of
these decisions, it seems, could be used to illustrate the adaptation of
overarching constitutional principles or transcendent constitutional
values to changing circumstances. They could probably more easily be
used to illustrate that, rather than helping us to cope with current
problems and current needs, the Court's constitutional decisions have
often been the cause of those problems and needs.
Whatever the merits of the Supreme Court's constitutional decisions of
the past three decades, they have, as to the issues decided, deprived us
of perhaps the most essential element of the human dignity Justice
Brennan is concerned to protect, the right of self-government, which
necessarily includes the right to make what others might consider
mistakes. It is not the critics of judicial activism but the activist
judges who can more properly be charged with being doctrinaire and
arrogant, for it is they who presume to know the answers to difficult
questions of social policy and to believe that they provide a needed
protection from government by the misguided or ignorant. An opponent of
judicial activism need not claim to know the answer to so difficult a
question of social policy as, say, the extent if any, to which abortion
should be restricted to know that it is shameful in a supposedly
democratic country that such a question should be answered for all of us
by unelected and unaccountable government officials who have no special
competence to do so.
Note
1. "The Constitution of the United States: Contemporary Ratification,"
delivered at a "Text and Teaching Symposium," October 12, 1985. All
other quotations from Justice Brennan are taken from this source unless
otherwise indicated.
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