The Evolution of Judicial Review
GOVT 2305
In this section we look at judicial
review.
Specifically we will look at what it
is, how the judiciary was able to
obtain it, and various issues and
controversies associated with it.
We’ll begin with an overview of the concept of judicial
review, and then look at Alexander Hamilton’s
argument in Federalist #78 about the need for judicial
review and why it should be granted to the courts. We
will then look at the circumstances surrounding the
court case of Marbury v. Madison, and then the
political opportunities presented by judicial review.
We will note that the power allows the court to be used
to impact public policy. This allows us to take another
look at the controversies associated with the role of the
courts and how the Constitution ought to be
interpreted.
Over time I’ve complied a small
number of blog posts related to
judicial review.
Click here to scroll through them.
Judicial Review (wikipedia)
Let’s start with a definition.
This comes from the Legal
Information Institute:
“Judicial review is the idea, fundamental to the
US system of government, that the actions of
the executive and legislative branches of
government are subject to review and possible
invalidation by the judicial branch. Judicial
review allows the Supreme Court to take an
active role in ensuring that the other branches
of government abide by the constitution.”
Here’s another:
“Judicial review is the doctrine under which
legislative and executive actions are subject to
review, and possible invalidation, by the
judiciary. Specific courts with judicial review
power must annul the acts of the state when it
finds them incompatible with a higher authority,
such as the terms of a written constitution.”
In the section on separated powers
we mentioned that judicial review
is the principle check that the
judiciary has on the other two
branches. It does so in two distinct
ways.
It checks the legislative branch by
reviewing the constitutionality of
the laws that it passes.
It checks the executive branch by
reviewing the actions of
administrative agencies. How did
they implement those laws?
If you recall from earlier lectures –
specifically the section on
federalism – the powers of the
national government are
established and limited by the
Constitution. I threw this quote
from Federalist 45 out at different
times this semester:
“The powers delegated by the
proposed Constitution to the
federal government, are few and
defined. Those which are to remain
in the State governments are
numerous and indefinite.”
By “few and defined” Madison meant that
the national government could only
perform those duties which it was
authorized to do in the Constitution.
Some of these were clearly spelled out as
delegated – or enumerated - powers, but
some were not. These are the implied
powers, which stem from conflicts over the
definition of the elastic clauses.
These clauses are:
The Commerce Clause
The General Welfare Clause
The Necessary and Proper Clause
Debates exist over the scope of the
powers contained in these clauses,
what they imply that the national
government can and cannot do.
Cases that ask the court to review the
constitutionality of national legislation
are often based on the accusation that
the law violates one of these clauses.
Judicial review can stem from
many other parts of the
Constitution.
One of the more topical is the
equal protection clause, which
limits the ability of states to treat
persons within their borders
unequally.
Judicial review allows the court to
determine what these clauses
mean – as well as all other parts of
the Constitution.
This is what is meant when we say
that the role of the court is to
interpret the law.
Before describing this further, two
clarifying points should be made
about the Supreme Court.
The first is that the court is reactive in nature.
This means that it does not instigate cases, it
reacts to cases brought before it.
Judicial review – especially as it relates to the
constitutionality of the laws passed by the
legislature (be it Congress, a state legislature, or
a city council) – begins with legal challenges
instigated by people who have standing to bring
a lawsuit forward arguing that the law goes
beyond what the Constitution allows.
Judicial review can also result from accusations
that the executive branch exceeded its authority
in some manner.
This can be due to the actions of an executive
agency that is accused of implementing a law in
an excessive manner. It can also result in claims
by a defendant that their due process rights
were violated by some part of the criminal
justice system, be it law enforcement, the
prosecution, or the actions of a trial judge.
Judicial Review is part of the scope
of the court’s appellate powers.
These cases have to work their way
through the courts – a process that
often takes years - in order for the
Supreme Court to consider it.
Thousands of cases are appealed
to the court each year, but only a
small handful are heard by it. We
will discuss this process below.
Judicial review provides an additional
avenue for interest groups to impact public
policy, this time through the court. They
can do so by strategically challenging the
constitutionality of specific laws, with the
intent of getting the court to overturn
them on the basis that they violate the
Constitution.
These are called test cases.
A test case is a political
consequence of the development
of the power of judicial review.
People interested in changing a law
that they cannot affect through the
legislature can challenge whether
it is properly based on the
Constitution.
These can also force the courts to
reconsider how they have
interpreted constitutional language
in the past. Previous precedence
can be overturned.
A classic example:
Brown v. Board
The case was brought forward
deliberately to force the courts to
reconsider its previous ruling in
Plessy v. Ferguson.
Plessy was a failed test case from 1896
that asked the courts to rule that
segregated railroad cars violated “the
equal protection doctrine” in the 14th
Amendment.
The effort failed. The court ruled that
separation into equal facilities did not
violate the spirit of equality.
This is Homer
Plessy, an
“octoroon” who
deliberately
challenged
Louisiana’s Separate
Car Act.
He did so based on a strategy developed by an
organization in New Orleans called “the Citizens’
Committee to Test the Constitutionality of the
Separate Car Law.”
The strategy failed. The court ruled against them
in 1896, but it set in motion a series of events
which would lead to future Supreme Courts
outlawing legal racial segregation in cases like
Brown v Board of Education.
Individuals and corporations can
also be the source of test cases.
Here are recent examples:
Robert A. Levy.
Hobby Lobby.
National Federation of
Independent Business.
The second point is that the composition of the court
changes – albeit slowly – over time. A decision made by one
set of Supreme Court Justices at one point in time may not
be the same as the one made by another set of justices at
another point in time.
The reason these changes occur – and occur slowly – is that
Supreme Court Justices are (1) appointed by presidents that
have ideological points of view that lead them to appoint
people to the court that share those points of view –
subject to senatorial confirmation and (2) they serve for life
meaning that there can be a mixture of points of view on
the court at any one point in time.
We will discuss this more
thoroughly in the section on the
Supreme Court.
Why is judicial review considered
necessary?
It is essential if the limits imposed
by the Constitution are to be
meaningful.
There are no limited powers if there is no
mechanism for enforcing those limits. That’s the
purpose of judicial review. Early state
constitutions lacked a mechanism that ensured
the supremacy of their constitutions, which
meant that state laws could alter the
constitutions easily. This lead to arbitrary rule,
which undermined stability and predictability.
So judicial review of some sort was considered
necessary, but it was not established in the
Constitution. There is a reason for this.
Judicial review is a potentially
dangerous power.
It allows one institution the ability to fully
negate what the others do. This could
potentially allow that institution to
consolidate legislative, executive and
judicial authority – which makes it
potentially tyrannical according to
Madison’s definition of tyranny.
Some states had a Council of Revision that
would review legislation in order to ensure that
it was in-keeping with the states constitutions,
but these were argued to be problematic.
Whoever controlled the council, could control
the state government. Similar proposals for the
national government went nowhere since there
was a suspicion that it gave too much power to
the members of the council.
It was determined that the Council
of Revision would likely become
tyrannical. Nothing could check it.
The issue was unresolved.
Nevertheless, the Supremacy
Clause implied that a power must
exist in order to enforce the
Constitution as being the “supreme
Law of the Land.”
The question was, what would that
power look like? Who would have
it? How would it operate?
For that explanation,
we will turn to
Federalist #78
(wikipedia), written
by Alexander
Hamilton, which
presents the
argument which
became the basis of
judicial review.
Let’s review the argument.
He begins by emphasizing the
weakness of the Judiciary
“Whoever attentively considers the different
departments of power must perceive, that, in a
Government in which they are separated from
each other, the Judiciary, from the nature of its
functions, will always be the least dangerous to
the political rights of the Constitution; because
it will be least in a capacity to annoy or injure
them. The Executive not only dispenses the
honors, but holds the sword of the community.
The Legislature not only commands the purse,
but prescribes the rules by which the duties and
rights of every citizen are to be regulated.”
“The Judiciary, on the contrary, has no
influence over either the sword or the
purse; no direction either of the strength
or of the wealth of the society; and can
take no active resolution whatever. It may
truly be said to have neither FORCE nor WILL,
but merely judgment; and must ultimately
depend upon the aid of the Executive arm
even for the efficacy of its judgments.”
Notice his use of the terms “will” and
“judgment.”
Is there a clear distinction between the
two? Judgment seems to have a more
narrow meaning than will. To judge
means that one determines whether a
decision exists within the parameters
of Constitutional law, not so with will.
This simple view of the matter suggests several
important consequences. It proves incontestably, that
the Judiciary is beyond comparison the weakest of the
three departments of power; that it can never attack
with success either of the other two; and that all
possible care is requisite to enable it to defend itself
against their attacks. It equally proves, that though
individual oppression may now and then proceed from
the courts of justice, the general liberty of the People
can never be endangered from that quarter: I mean so
long as the Judiciary remains truly distinct from both
the Legislature and the Executive
He then discusses how an
independent judiciary is necessary
in a limited Constitution and how a
power needs to exist to declare
laws contrary to the Constitution
void.
“The complete independence of the Courts of justice is
peculiarly essential in a limited Constitution. By a
limited Constitution, I understand one which contains
certain specified exceptions to the Legislative authority;
such, for instance, as that it shall pass no bills of
attainder, no ex post facto laws, and the like.
Limitations of this kind can be preserved in practice no
other way than through the medium of the Courts of
justice; whose duty it must be to declare all Acts
contrary to the manifest tenor of the Constitution void.
Without this, all the reservations of particular rights or
privileges would amount to nothing.”
He states that this will not make
the Judiciary superior to the other
branches. It only means that the
Constitution is superior to
statutory law.
“Some perplexity respecting the rights of the
Courts to pronounce Legislative acts void,
because contrary to the Constitution, has arisen
from an imagination that the doctrine would
imply a superiority of the Judiciary to the
Legislative power. It is urged that the authority
which can declare the acts of another void, must
necessarily be superior to the one whose acts
may be declared void. As this doctrine is of great
importance in all the American Constitutions, a
brief discussion of the ground on which it rests
cannot be unacceptable.”
“There is no position which depends on clearer
principles, than that every act of a delegated
authority, contrary to the tenor of the
commission under which it is exercised, is void.
No Legislative act, therefore, contrary to the
Constitution, can be valid. To deny this, would
be to affirm, that the deputy is greater than his
principal; that the servant is above his master;
that the Representatives of the People are
superior to the People themselves; that men
acting by virtue of powers, may do not only
what their powers do not authorize, but what
they forbid.”
The judiciary must keep the
legislature in check and have the
power to interpret the laws. The
judiciary is also responsible for the
interpretation of the laws and the
Constitution. This is not stated in
the Constitution.
“If it be said that the Legislative body are themselves
the constitutional judges of their own powers, and that
the construction they put upon them is conclusive
upon the other departments, it may be answered, that
this cannot be the natural presumption, where it is not
to be collected from any particular provisions in the
Constitution. It is not otherwise to be supposed, that
the Constitution could intend to enable the
Representatives of the People to substitute their will to
that of their constituents. It is far more rational to
suppose, that the Courts were designed to be an
intermediate body between the People and the
Legislature, in order, among other things, to keep the
latter within the limits assigned to their authority.”
“The interpretation of the laws is the proper and
peculiar province of the Courts. A Constitution is, in
fact, and must be regarded by the Judges, as a
fundamental law. It therefore belongs to them to
ascertain its meaning, as well as the meaning of any
particular Act proceeding from the Legislative body. If
there should happen to be an irreconcilable variance
between the two, that which has the superior
obligation and validity ought, of course, to be
preferred; or in other words, the Constitution ought to
be preferred to the statute, the intention of the People
to the intention of their agents.”
He states that constitutional law
must trump statutory law because
the Constitution – because it went
through a ratification process – is a
closer reflection of the will of the
people than is statutory law.
“Nor does this conclusion by any means suppose a
superiority of the Judicial to the Legislative power. It
only supposes that the power of the People is superior
to both; and that where the will of the Legislature,
declared in its statutes, stands in opposition to that of
the People, declared in the Constitution, the Judges
ought to be governed by the latter rather than the
former. They ought to regulate their decisions by the
fundamental laws, rather than by those which are not
fundamental.”
“. . . the prior act of a superior ought
to be preferred to the subsequent act
of an inferior and subordinate
authority; and that accordingly,
whenever a particular statute
contravenes the Constitution, it will be
the duty of the Judicial tribunals to
adhere to the latter and disregard the
former.”
Again, in interpreting the
Constitution, judges and justices
must exercise “judgment,” not
“will” in interpreting the law.
“It can be of no weight to say that the Courts, on the
pretence of a repugnancy, may substitute their own
pleasure to the constitutional intentions of the
Legislature. This might as well happen in the case of
two contradictory statutes; or it might as well happen
in every adjudication upon any single statute. The
Courts must declare the sense of the law; and if they
should be disposed to exercise WILL instead of JUDGMENT,
the consequence would equally be the substitution of
their pleasure to that of the Legislative body. The
observation, if it proved anything, would prove that
there ought to be no Judges distinct from that body.”
The judiciary can only perform this
function if it has sufficient power,
and the best way to guarantee this
power is to grant it lifetime tenure.
“If then the Courts of justice are to be
considered as the bulwarks of a limited
Constitution, against Legislative
encroachments, this consideration will
afford a strong argument for the
permanent tenure of Judicial offices, since
nothing will contribute so much as this to
that independent spirit in the Judges,
which must be essential to the faithful
performance of so arduous a duty.”
“This independence of the Judges is equally
requisite to guard the Constitution and the
rights of individuals, from the effects of those ill
humors, which the arts of designing men, or the
influence of particular conjunctures, sometimes
disseminate among the People themselves, and
which, though they speedily give place to better
information, and more deliberate reflection,
have a tendency, in the mean time, to occasion
dangerous innovations in the Government, and
serious oppressions of the minor party in the
community.”
Notice that he reiterates the
importance of an independent
judiciary, and the need of the
judiciary to maintain the form and
spirit of the Constitution.
In brief, Hamilton argues that a
power of judicial review is
necessary, that the judiciary ought
to have that power, and he
suggests limits on how the power
ought to be exercised.
Now the question is, how is the power
to be claimed by the court? There was
still no constitutional authorization for
the power.
That is why Marbury v. Madison
(wikipedia) is such an important case.
It established judicial review as
precedence. The story behind the case
is worth knowing.
So we now turn to, first, the court
case Marbury v Madison (1803)
and, second, the debate over how
the constitution ought to be
interpreted.
(Findlaw)
The story actually begins with the
passage of The Judiciary Act of
1789 which not only created the
first court system (more on that
below) but also gave the Supreme
Court a new power: The ability to
hear cases requesting the grants of
Writs of Mandamus.
Here’s relevant section in the law:
SEC. 13: The Supreme Court . . .
shall have power to issue . . . writs
of mandamus, in cases warranted
by the principles and usages of law,
to any courts appointed, or
persons holding office, under the
authority of the United States.
Definition of A Writ of Mandamus:
A writ or order that is issued from a
court of superior jurisdiction that
commands an inferior tribunal,
corporation, Municipal Corporation, or
individual to perform, or refrain from
performing, a particular act, the
performance or omission of which is
required by law as an obligation.
Jump forward a decade or so to the
defeat (he came in third) of John
Adams in the election of 1800.
After his defeat, the Federalists in
Congress passed the Judiciary Act of
1801 which reorganized the court
system and created new circuit court
positions.
Adams would staff many of these
positions prior to Jefferson’s
inaugural. These became known as
the midnight appointments since
some were done on his last day in
office. Since many of these people
were judges, they were also
referred to as the midnight judges.
These appointments were meant
to limit what Jefferson could
accomplish in office. Jefferson
disapproved. He knew that this
was a way for the Federalist to
continue their influence. If they
controlled the courts they
controlled the law.
the Federalists "retired into the
judiciary as a stronghold“
- Thomas Jefferson
This reminds us of the
consequence of life time tenure in
the judiciary. It provides a check on
the short term preferences of the
political branches.
The most important
of the “midnight
appointments” was
John Marshall, the
Fourth Chief Justice of
the Supreme Court.
His key goal was to
increase the power
and prestige of the
court.
Prior to his appointment, the court went
through 3 chief justices in twelve years.
There was little glamour or power in the
position.
Marshall’s goal was to increase the power
of the court – to make it relevant. He is
commonly regarded as being the greatest
of the chief justices of the court.
"My gift of John
Marshall to the
people of the
United States was
the proudest act
of my life." John
Adams, President
Attaining judicial review was a
critical step in increasing the
court’s power. William Marbury’s
lawsuit against the Jefferson
Administration gave him the
opportunity.
Click here for information on the
Marshall Court.
Marbury was one
of the midnight
appointees made
by Adams prior to
leaving office.
Marbury’s commission to be
Justice of the Peace was not
delivered back to Marbury before
Adams left office. James Madison
(as secretary of state) would not
deliver the commission, so
Marbury sued to have it delivered
and he could occupy the position.
It was signed and sealed, but not
delivered.
He took his suit to the Supreme
Court based on the power granted
to it in the Judiciary Act of 1789
(text).
The court could now hear requests
for Writs of Mandamus, Marbury
requested that one be issued to
Jefferson.
Here’s the political background:
Jefferson let it be known that he
would not deliver the commission
no matter what the courts decided.
Which put Marshal in a bind.
By either issuing or not issuing the writ, the
court’s weakness would be obvious. If he issued
the writ and it was ignored, the weakness of the
court would be obvious, but if he did not issue
the writ, people would assume that the court
could be intimidated by the executive branch.
Neither option was good. Each threatened to
further weaken an already weak court. As a
Federalist, Marshall was interested in expanding,
not contracting, the power of government.
The best option was to declare the
writ of mandamus unconstitutional.
That is to claim the power of judicial
review.
This way the court did not have to rule
on the writ of mandamus. They
declared that there was no power to
issue writs, so the point was moot.
The power of judicial review was a
far more significant power than the
writ of mandamus.
This decision was written out in the
case of Marbury v. Madison.
It asked and answered three basic
questions:
1 - Did Marbury have a right to the
commission? Yes
2 - Do the laws of the country give
Marbury a legal remedy? Yes – the writ
of mandamus.
3 - Is asking the Supreme Court for a
writ of mandamus the correct legal
remedy? No
The third clause claims that the
writ violates the constitution – the
fundamental law.
Here is the part of the Constitution
that mattered:
Article Three, Section Two, Clause Two
In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a
State shall be Party, the supreme Court shall
have original Jurisdiction. In all the other Cases
before mentioned, the supreme Court shall have
appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such
Regulations as the Congress shall make.
This outlines what when the
Supreme Court can act as a court
of original jurisdiction – in other
words, a trial court.
Notice that it says nothing about
its ability to issue writs of
mandamus.
The Judiciary Act of 1789, however,
did allow the Supreme Court to act
as a court of original jurisdiction in
issuing writs. Despite the fact that
this power is not contained in the
Constitution.
This made the law invalid
according to Marshall
From Marbury v. Madison:
The authority, therefore, given to
the supreme court, by the act
establishing the judicial courts of
the United States, to issue writs of
mandamus to public officers,
appears not to be warranted by
the constitution
Since it was not warranted, it was
not legitimate, meaning it was null
and void.
This established the precedent for
judicial review of laws passed by
Congress.
State laws had already been
overturned, and the courts had
claimed that such a right existed,
but not it was finally used.
In order to prevent backlash, the
power of judicial review was used
only occasionally early on.
After Marbury, the court did not
overturn a congressional law until
the Dred Scott decision in 1857,
which overturned the Missouri
Compromise of 1820.
The danger was that frequent use
of the power would lead it to
opposition to it. It remains a
controversial power since an
unelected part of government can
be used to overturn laws passed by
an elected part of it.
But it has become more common
over time
For a history of the use of Judicial
Review by the Courts click hers:
The United States Supreme. Court
and judicial review of Congress,
1803-2001
It contains this graph showing the
increased use of judicial review
over time.
And here: “The conversation has
changed but the Court-Congress
dialogue continues.”
It also contains graphs showing its
increased frequency:
So now the courts can strike down
laws they judge to violate the
Constitution.
So What?
As mentioned above, the power of judicial
review creates an alternative opportunity
for interest groups and individuals to
impact law and public policy.
They can use the courts to strike down
laws they believe violate the Constitution.
The courts become another instrument for
interest groups to impact public policy.
As mentioned before, they do so
by the use of test cases. Court
cases brought forward with the
deliberate intent to overturn
legislation.
Again, we will look at these more
fully below.
The big point I that this makes the
court a policymaking institution – if
not directly, at least indirectly. This
is not quite what it was set up to
be, so it is controversial.
Let’s review two aspects of this
controversy before digging into test
cases.
But a claim that a law violates the
Constitution will ultimately depend
on how the Justices on the
Supreme Court interpret the law
and the relevant constitutional
language.
Its worth pointing out that Congress can
always change a law – or even amend the
Constitution – to undue the use of judicial
review.
Judicial review can be checked – but this is
very difficult to do. The 14th Amendment
was meant to overturn the court’s decision
in Dred Scott, but there have been few
other similar actions.
There are two questions raised by
judicial review:
1. How should the court interpret
the Constitution?
2. How aggressively should the
court use the power of judicial
review?
1 – Should justices interpret the
constitution in a strict or loose
manner?
2 – Should justices actively or
passively address (overturn) laws
which might butt up against its
understanding of the Constitution?
The First Dispute:
The Constitution is a vague document
which allows for a variety of
interpretations. Members of the court tend
to adopt a particular way of interpreting
the document that guides how they
interpret not only the Constitution, but
legislation as well. Let’s run through a few.
Before we do – let’s review what
judges and justices can use to
interpret the constitution and law.
How can they come to an
understanding of what “speech,”
“reasonable search and seizures,”
or the equal protection of the law”
mean?
Here’s a bit from the Exploring
Constitutional Conflicts page:
There are five sources that have guided interpretation
of the Constitution: (1) the text and structure of the
Constitution, (2) intentions of those who drafted, voted
to propose, or voted to ratify the provision in question,
(3) prior precedents (usually judicial), (4) the social,
political, and economic consequences of alternative
interpretations, and (5) natural law.
As we will see, different theories of
interpretation focus on different
sources of interpretation.
There are two general ways to
interpreting the Constitution
1 - Strictly
2 - Loosely
(see Theories of Constitutional Interpretation)
Click here for past blog posts on
- Loose Construction
- Strict Construction
The following website divides these
theories into originalists and nonoriginalists.
The difference is whether the
interpretation of the Constitution should
rest primarily on the document as
originally written, or should changes in
society over time be taken into account?
This touches on a huge debate
associated with the Constitution.
Was it intended by its authors to always be interpreted
as originally written - to provide a solid unyielding
foundation upon which the republic was built – or was
it intended to be subject to occasional modifications?
Was it written loosely in order to change with the
times? There are few indications about what the
people who wrote the document felt about this – and
no instructions in the document itself about how it
ought to be interpreted.
So the debate rages.
Here’s a bit of background on each
Strict (or Narrow) Construction
This is the theory that the interpretation of the
Constitution should be narrow, and that strict limits
were placed on government’s powers in the original
document. Thomas Jefferson and the Democrat –
Republicans, along with the Anti-Federalists favored
this view of the Constitution. It is argued to be mostly a
political orientation towards the Constitution – click
here for an explanation – that begs the question: how
does one get to an understanding of the strict meaning
of constitutional language?
There a couple ways – at least -- to
strictly or narrowly interpret
constitutional language:
Original Intent
Textualism
Original intent maintains that in
interpreting a text, a court should
determine what the authors of the
text were trying to achieve, and to
give effect to what they intended
the statute to accomplish, the
actual text of the legislation
notwithstanding.
Textualism is a formalist theory of
statutory interpretation, holding
that a statute's ordinary meaning
should govern its interpretation, as
opposed to inquiries into nontextual sources such as the
intention of the legislature in
passing the law.
The difference between the two is that the
former tries to figure what the law intended to
accomplish, while the second argues that that is
impossible. All one can do is look at the
language of the law and reasonably infer from
the words used to articulate the law.
By reasonably infer, this means that the
ordinary, or plain meaning of the words be used
to determine what the law means.
While each is distinct, each sees a
fixed meaning in the Constitution.
Interpretations of the Constitution
should be bound by that meaning.
The only question is in how to
arrive at that meaning.
Loose (or Broad) Construction
Adherents to this theory argue that the
Constitution does not have a fixed
meaning, and was not intended to, Rather,
it was intended to be broadly interpreted
to be adjusted to fit the contemporary
needs of society. As these needs change –
and as morays change as well – the
meaning of constitutional clauses change
with them.
Proponents argues that a
dynamically changing society
needs a Constitution that can
adjust to changing needs.
Otherwise the Constitution ceases
to be a meaningful viable
document.
Two relevant terms
The Living Constitution
The “Penumbra”
The Living Constitution is a
concept in American constitutional
interpretation which claims that
the Constitution has a dynamic
meaning. The idea is associated
with views that contemporaneous
society should be taken into
account when interpreting key
constitutional phrases.
It holds that the Constitution was
written with broad, vague
language in order to allow future
generations to adapt its meaning
as they saw fit to their unique
issues.
Certain rights can be found in the
"penumbras" and "emanations" of
other constitutional protections
Example: The Right to Privacy
It’s supporters argue that the right
can be found in the penumbra
surrounding the 3rd, 4th, 5th and 9th
amendments. Opponents argue
that if the word “privacy” is not
spelled out in the Constitution, it
does not exist.
A common criticism of loose
interpretations of the Constitution:
It allows for the courts to interpret the
Constitution so broadly as to create laws,
not just interpret them. Since members of
the courts are appointed, this can lead to
policy being set in an undemocratic
manner.
On the current
court Stephen
Breyer is argued
to be a strong
supporter of the
doctrine of a
living
constitution.
Antonin Scalia is
a proponent of
textualism.
Here’s a link to a C-Span video
where Breyer and Scalia debate
their respective theories of
interpretation.
In the next section we will look at
the way existing members of the
Supreme Court interpret the
document.
For a more radical take on the
subject, here’s a review of a recent
book by a federal judge (who was
almost appointed by President W.
Bush to the Supreme Court that
argues that all theories are wrong,
and are only used to allow justices
to support decisions which justify
activist decisions:
Click here for
more on J.
Harvie Wilkinson
III, a member of
the 4th Circuit
Court of
Appeals.
“According to Wilkinson’s “Cosmic Constitutional
Theory,” “the theories have given rise to nothing less
than competing schools of liberal and conservative
judicial activism, schools that have little in common
other than a desire to seek theoretical cover for
prescribed and often partisan results.” As a result of
their cosmic theorizing, Wilkinson concludes, liberal
and conservative judges and justices are too quick to
second-guess the choices of legislatures, and the
casualty is ‘our inalienable right of self-governance.’”
Which provides a nice way to shift
over to the next topic:
The Second Dispute:
What is the proper role of the
courts regarding public policy
matters? Should the courts be
actively disposed to overturn
legislation they find problematic,
or should they restrain themselves
and defer to the political branches?
Here are two relevant terms:
judicial activism
judicial restraint
Judicial Activism: The view that the
Supreme Court justices (and even other
lower-ranking judges as well) can and
should (re)interpret the texts of the
Constitution and the laws in order to serve
the judges' own considered estimates of
the vital needs of contemporary society
when the elected "political" branches of
the Federal government and/or the various
state governments seem to them to be
failing to meet these needs.
Judicial Restraint: The view that the Supreme
Court (and other lesser courts) should not read
the judges' own philosophies or policy
preferences into the constitution and laws and
should whenever reasonably possible construe
the law so as to avoid second guessing the policy
decisions made by other governmental
institutions such as Congress, the President and
state governments within their constitutional
spheres of authority.
The principle difference between the two is
whether the courts should show deference –
and how much - to the legislative branch when
reviewing the constitutionality of laws. It can
also refer to the willingness of members of the
court to ignore court precedence and change
how they approach certain cases. Do they
restrain themselves based on their own prior
decisions or are they willing to change them?
Let’s look at each separately
Judicial Activism
Judicial activism is sometimes
justified if the court believes that
the political system prevents a
minority group from being able to
protect its interests, or to protect
what it argues is a fundamental –
but unrecognized – right.
The rationale for this idea was
articulated in Footnote 4 of US v
Caroline Products in 1938. In it the
court stated that in economic
matters, the court should defer to
the legislative branch, but not
necessarily in non-economic
matters, especially those that
impact constitutional liberties.
Footnote Four outlines a higher level of judicial
scrutiny for legislation that met certain
conditions:
1 - On its face violates a provision of the
Constitution (facial challenge).
2 - Attempts to distort or rig the political
process.
3 - Discriminates against minorities, particularly
those who lack sufficient numbers or power to
seek redress through the political process.
This provided a legal rationale for a
more active court – one that saw
cause to overturn legislative rules
on the state and local level, as well
as the national.
Let’s look at recent examples of
court cases that were argued to be
activist:
Baker v Carr
Brown v Board of Education
Citizens United v FEC
In Baker v Carr, the Supreme Court overturned the
design of legislative districts – which are drawn by
the states – because they had not been redrawn in
decades and were severely unequal. This resulted in
a distortion in representation. Urban districts had
far more people in them that rural districts, which
meant that rural districts had more legislative
power.
The Supreme Court ruled that the 14th
Amendment’s equal protection clause contained an
implicit requirement that of one man one vote.
The court first had to rule that the
case did not present a political
question that could only be
resolved by the legislature.
It ruled that it did not, and that the
court had the right to make a
decision in the case.
The court mandated that districts
drawn by state legislatures have
the same population – more or less
depending upon which district is in
question.
It imposed its understanding of
what constitutes a properly
designed legislative district.
In Brown v Board of Education, the
Supreme Court overturned local laws and
policies which established legal racial
segregation in public schools.
These were supported by majorities in
each of the cities and states they were
established. The national court – since it
was not responsive to those majorities –
was in a position to be able to overrule
those majorities.
Supporters of each case argue that
the issues involved (unequal
representation in legislatures and
segregation in public school) could
not be changed through
legislatures due to majority rule.
The courts had to actively
intervene in order to protect
minorities.
That is the consequence of an
institution composed of people
that are appointed for life time
terms of office.
They can make decisions that over
rule the majority.
The design of the national courts
allow for activism.
Click here for an article claiming
that Citizens United v the FEC was
an example of judicial activism.
Some Supreme Court justices have
developed reputations as being not
hesitant about striking down laws,
or making decisions actively.
Here are Justices commonly
referred to as activist.
One example
was Thurgood
Marshall who as
a lawyer argued
Brown v Board of
Education before
the court.
One of his law clerks was
Elena Kagan, who was
nominated by Obama to
be a member of the court
in 2010.
Here is a link to a story
about her confirmation
hearing where the activism
of Marshall became a
source of debate among
the judges.
Such judges are sometimes
accused of “legislating from the
bench,” which seems to violate the
principle of separated powers.
Others argue it is a necessary way
to protect minorities from tyranny
of the majority.
The question here is whether such
judges are in fact acting beyond
their proper roles, or whether they
are simply making decisions that
are unpopular to their accusers.
The federal courts are supposed to
be able to make unpopular
decisions.
Some readings along these lines:
- Activist Judges: Why are they creating such a stir?
- Activist judges? What's in a name?
- Disorder In The Court:
Activist Judges Threaten Justice.
- So Who Are the Activists?
The Heritage Foundation gets a bot
specific on what it means by
judicial activism.
Nine Types of Judicial Activism
Abusing Precedent
Contorting Text
Importing Foreign Law
Judicial Dishonesty
Judicial Imperialism
Living Constitutionalism
Nullifying Rights
Playing Favorites
Playing Legislator
Critics argue of judicial activism
argue that the courts should defer
to legislatures. But here’s an
argument that they shouldn’t
always:
“the United States is not “a
fundamentally majoritarian nation
in which the ability to impose one’s
will on others through law is a
sacred right that courts should take
great pains not to impede.”
America’s defining value is not
majority rule but individual liberty.”
The Supreme Court was designed to limit
the majoritarian impulses of the
legislature.
That is why it is appointed. It is designed to
check the power of the majority (the
tyranny of the majority). It does not matter
that it thwarts the will of the people – that
is its job according to this perspective.
Nevertheless, there is an argument
that the courts should respect the
will of the people – as expressed
through the legislative branch –
and restrain itself when it sees a
reason to undo its laws.
Judicial Restraint
The courts should restrain
themselves unless there is an
overwhelming need to do so.
A judge exercising restraint is likely
to yield to the decisions made by
the political branches – as long as
they are within the limits of what is
constitutionally acceptable –
despite the fact that they disagree
with the substance of the law.
Judges who practice restrains claim
to be sticking to the mandate by
Hamilton that they exercise
judgment, not will.
Legislators can exercise will
because they can be kept in check
by the electorate.
Judicial Restraint also holds that
precedence and stare decisis be
deferred to as much as possible.
For a look at a reviews of recent
books and articles on the subject,
click here.
If you are feeling
ambitious, here
is an academic
paper about
Felix Frankfurter,
a leading
advocate of
Judicial
Restraint.
One of his many quotes: “As a
member of this court I am not
justified in writing my private
notions of policy into the
Constitution, no matter how
deeply I may cherish them or how
mischievous I may deem their
disregard.”
He was one of the dissenters in
Baker v Carr – which was discussed
above.
Baker v. Carr/Dissent Frankfurter
He was concerned that by wading
into political disputes the court
risked undermining its credibility:
”Disregard of inherent limits in the effective exercise of the
Court's "judicial Power" not only presages the futility of judicial
intervention in the essentially political conflict of forces by which
the relation between population and representation has time
out of mind been, and now is, determined. It may well impair the
Court's position as the ultimate organ of "the supreme Law of
the Land" in that vast range of legal problems, often strongly
entangled in popular feeling, on which this Court must
pronounce. The Court's authority -- possessed of neither the
purse nor the sword -- ultimately rests on sustained public
confidence in its moral sanction. Such feeling must be nourished
by the Court's complete detachment, in fact and in appearance,
from political entanglements and by abstention from injecting
itself into the clash of political forces in political settlements.”
But judicial restraint has its critics
as well:
"there is a difference between
judicial restraint and judicial
abdication.“ – Chief Justice John
Roberts, in his concurring decision
in Citizens United v FEC.
“Had prior Courts never gone against stare
decisis, for example, "segregation would be
legal, minimum wage laws would be
unconstitutional, and the Government could
wiretap ordinary criminal suspects without first
obtaining warrants". Roberts' concurrence
recited a plethora of case law in which the court
had ruled against precedent. Ultimately, Roberts
argued that "stare decisis...counsels deference
to past mistakes, but provides no justification for
making new ones“ – Source.
An alternative theory:
Judicial Minimalism
While its still early, this is argued to
the viewpoint of Roberts and
Sotomayor.
Judicial minimalism is a judicial approach
guided by three major principles. First,
judges do not simply 'apply the law,’ they
make it. Two, this change is usually a
response to a society that is changing.
Three, in practice this equates to narrow
rulings on the particular set of facts at
hand, not sweeping change
For a criticism of this approach:
Curse of judicial minimalism.
And a book on the subject: One
Case at a Time: Judicial Minimalism
on the Supreme Court.
Let’s finish with a caveat
All of this only makes sense if you
believe that the court makes
decisions based on the legal
principles articulated here.
Some argue that this is naïve, and
that legal principles are a veneer
which are used to justify decisions
that are based on politics and
ideology.
Click here for an example of that
argument: Supreme Injustice.
The author suggests that the court
is primarily motivated by political
considerations, not abstract legal
principle.
And for the very ambitious, here is
an academic paper that argues
that ideological voting occurs in
the courts of appeals.
It matters whether a judges was
appointed by a Democrat or a
Republican.
The End