JUDICIAL 🤦‍♂️🔪 ACTIVISM & the Constitution

Friends – Re  a living or dead Constitution. 

The Grand Canyonesque ideological divide between Left and Right is whether the Constitution simply means what is says and should be adhered to – or whether it may be ignored or dismissed as needed to further leftists’ political goals.  There is now an absurd bit of fiction regularly propagated by the left-leaning mainstream-media which insists that “judicial activism” comes equally from both sides of the aisle.  Anyone wishing to hold on to that fantasy should read no further.

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.  (Occasional emphasis via underlining and photo-satire stuff courtesy of yours truly.).

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.  This, they howled, was blatant judicial activism.  But it was not. 

Thus, Stevens is unabashedly proposing that a judge’s beliefs about “sound policy” provide as much constraint on judges’ 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 judge’s opinions about policy constitute the discretion that needs to be constrained by legal standards like original meaning. . .  He even suggests that a judge’s views about sound policy should be at least as “decisive” in determining constitutional meaning as evidence about the Founders’ intentions."

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Constitutional Law Without the Constitution:  The Supreme Court’s Remaking of America – Lino Graglia

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.  In our society today, this function has been perverted.  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.

. . . The most striking thing about judicial review is that it is not explicitly provided for in the Constitution. . . If the framers – the authors and , most important, the ratifiers of the Constitution – 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.  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.

. . . Judicial activism can most usefully be defined as rulings of unconstitutionality not clearly required by the Constitution – “clearly” because in a democracy the opinion of elected legislators should prevail over that of unelected judges in cases of doubt.  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. 

All or almost all of the Supreme Court’s rulings of unconstitutionality, beginning at least with the Warren Court, are examples of judicial activism – usurpations of legislative power – in that they were not clearly, and usually not even arguably, required by, and indeed were sometimes in violation of, the Constitution.  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 Court’s abuse of the power.  If the Court did in fact only what it invariably claims to do – enforce the Constitution – 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.  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. 

The Irrelevance of the Constitution to Constitutional Law

It would intervene now, for example, to protect “discrete and insular” minorities that it considered insufficiently protected by the political process and to improve the political process itself by correcting what it considered defects.  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 – to the Court as the champion of egalitarianism and the engine of social reform.

. . . 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 Amendment’s due process clause “incorporated” – that is, made applicable to the states – most (though not all; the Court gets to choose) of the provisions of the first eight amendments.  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.  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.  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.

. . . Another way by which the Court purported to avoid acting as a superlegislature was by finding surprising new meanings in the equal protection clause.  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.

. . . Griswold and Levy exemplify Supreme Court decision making on matters of fundamental social importance on no basis other than the justices’ arrogant confidence in the rightness of their policy preferences and willingness to impose them on their fellow citizens. . . Griswold’s ludicrous but widely lauded invalidation of Connecticut’s anticontraception law emboldened the Court to go on to the next step of invalidating anti-abortion laws as well.  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 – once was apparently enough for that joke – but on a frank revival of substantive due process.  An unlimited power to invalidate laws as “unreasonable” (i.e., as contrary to a majority of the justices’ 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.  In the hands of liberal justices, it became, they now also agreed, an indispensable means of achieving social reforms achievable in no other way. 

It is not possible to criticize the Court’s explanation of the constitutional basis of Roe, because there is no explanation, only assertion.  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.

. . . The effect of the Court’s 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.

. . . 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.  The result is seemingly interminable trials and retrials in which the question of guilt or innocence is often the least relevant consideration. 

. . . 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.  “Poor people, nonconformists, dissenters, idlers”, Justice Douglas instructed, cannot “be required to comport themselves according to the lifestyle deemed appropriate” by public authorities. 

 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 — although his name is probably unknown to the great majority of his fellow citizens — 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 — the only question the great variety of matters dealt with under that rubric have in common — 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 — where Parliament, not a court, is said to be supreme — which could well be taken as reason enough to assume that no such power had been granted.  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 — other nations have written constitutions without judicial review — 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 — to attempt to determine what the Framers intended to say — 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 — in fact, impossible — 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 — 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 — that they are not in fact based on the Constitution — 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 — i.e., what is popularly referred to as "judicial activism" —

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 — 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 — especially when read, as all writings must

be, in historical context — 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

— 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 —

judicial activism cannot proceed with no constitution at all — 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 — on

the contrary, the stronger national government created by the

Constitution was correctly seen as a potential danger to human rights —

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 — easily printed,

with all twenty-seven amendments and repealed matter, on fewer than

twenty pages — 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 — federalism,

i.e., limited national power and a high degree of local autonomy, was

considered the principal protection — 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 — the main purpose of which was to leave

matters of religion to the states — 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 — a committee of nine lawyers unelected to and essentially

unremovable from office — 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 —

even if, unlike judge-made restrictions, they were once democratically

adopted — 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 — the

judges do not really decide cases by studying the words "due process" or

"equal protection" — 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 — indeed, if it is an oration to human dignity, as

he maintains — 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 — though not by

the states — 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 — 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 — 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 — 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 — 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 — all

government power is obviously dangerous — 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 —

for example, public demonstrations will have to be regulated at some

point in the interest of maintaining public order — 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 — 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 — it can be updated if necessary without the Court's help

— 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 — 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 — 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 — 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 — 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.