No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 05 August 2009
The confusion surrounding the current debates on the nature and scope of judicial review is compounded by the failure of the contending parties to relate their positions to a defensible general theory of law and politics. But these debates may also aid in reconstructing such a theory. After a brief survey of four different stands with regard to judicial review, this article concludes by suggesting how the prevailing interpretations of law and politics need to be revised, if judicial review is to be to the Constitution what the practice of government of law is to its theory.
1. The Federalist Society, The Great Debate: Interpreting Our Written Constitution (Washington, D. C., 1986), p. 39.Google Scholar
2. Ibid., p. 25.
3. Beard, Charles A., The Supreme Court and the Constitution (Englewood Cliffs, NJ: Prentice Hall, [1912] 1962), p. 33.Google Scholar
4. The very titles of some better known recent books carrying on the debate illustrate this point. For instance, in Morality, Politics, and Law (New York: Oxford University Press, 1988),Google Scholar Michael J. Perry continues to search for “the [morally] right answer” [what it means to be human] which he started in his The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982),Google Scholar but even as he urges adoption of a “deliberative, transformative politics,” he never commits himself to a clear definition of law. In Red, White, And Blue (Cambridge, MA: Harvard University Press, 1988),Google Scholar Mark lushnet merely belabors his paradox that “liberal tradition makes constitutional theory both necessary and impossible” and ends triumphantly with, “Critique is all there is” (p. 318). In Constitutional Cultures (Berkeley: University of California Press, 1989),Google Scholar Robert F. Nagel while mentioning other theories is mainly interested in “The Mentality and Consequences of Judicial Review.” Judicial Review and American Democracy (Ames: Iowa State University Press, 1988),Google Scholar edited by Albert P. Malone and George Mace, is a collection of articles old and new, pro and contra, faithful to its title. The same may be said of the following contributions, none of which considers how judicial review may fit with contrasting views of the nature of law and politics. Wolfe, Christopher, The Rise of Modem Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York: Basic Books, 1986);Google ScholarBarber, Sotirios A., On What the Constitution Means (Baltimore: The John Hopkins University Press, 1984)Google Scholar [it embodies our rational aspirations]; Agresto, John, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984);Google Scholar and finally, Ely, John Hart, Democracy and Distrust (Cambridge: Harvard University Press, 1980),Google Scholar offering a “process-oriented” justification of judicial review, and Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press 1978),Google Scholar offering a “rights-oriented” defense.
5. Carter, Lief H., in Contemporary Constitutional Lawmaking (New York: Pergamon Press, 1985, p. 73),Google Scholar suggests that “[T]he legitimacy debate is a surrogate for debating fundamental and scientifically unanswerable normative questions of political philosophy.” He provides a spirited overview of the contending interpretations of judicial review, which he thoroughly documents. But in the end he also renounces normative questions by choosing an “aesthetic” approach that looks at law as “dramatic narrative” and the Court's performance as “theatre.”
6. Lasswell, H. D., Politics: Who Gets What, When, and How (New York: O. P. Brown, 1936).Google Scholar
7. Homes, Oliver Wendell, Collected Legal Papers (Boston: Little Brown, 1920), p. 173.Google Scholar
8. Parenti, Michael, “The Constitution as an Elitist Document,” in How Democratic is the Constitution, ed. Goodwin, R. A. and Shambra, W. A. (Washington, D. C.: American Enterprise Institute, 1980), p. 56.Google Scholar
9. Lerner, Max, “Minority Rule and the Constitutional Tradition,” in The Constitution Reconsidered, ed. Read, Conyers (New York: Columbia University Press. 1938), p. 192.Google Scholar
10. Beard, Charles A., An Economic Interpretation of the Constitution (New York: Macmillan, 1913).Google Scholar But the way Beard put it indicates that he may not have been totally opposed to the practice: “The keystone of the whole [constitutional] structure is, in fact, the system provided for judicial control — the most unique contribution to the science of government which has been made by American political genius” (p. 162).
11. Elliot, Jonathan, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, D. C., 1854), vol. 4, p. 330.Google Scholar
12. “Great Usurpation” was the title of an article written by Dean Tricket of the Dickinson Law School for the American Law Review in 1906, in which he argued that “judicial duty has plenty of scope, without invading the province of Congress, and without arrogating the authority to brand it either with ignorance, or with disregard of the sense of the Constitution.” In a similar vein, Senator Robert M. LaFollette wrote in his introduction to Roe, Gilbert E., Our Judicial Oligarchy (New York, 1912):Google Scholar “By usurping the power to declare law unconstitutional and by presuming to read their own views into statutes without regard to the plain intention of the legislature, they have become in reality the supreme law-making and law-giving institution in our government.” Finally, Judge R. M. Wanamaker wrote this in the Proceedings of the Illinois Bar Association in 1912: “The fathers never intended to confer such an extraordinary jurisdiction, then unknown, else they would have provided for it in the Constitution. It is an usurpation of judicial power. The exercise of this unwarranted and usurped governmental power against the public interest, against the public health, safety and life, has done more than any other single thing to arouse the present popular hostile feeling toward our courts of last resort.” All of these quotes are from Haines, Charles Grove, The American Doctrine of Judicial Supremacy (New York: Russell and Russell, 1932).Google Scholar To Haines himself it appeared that all the warnings of the Antifederalists had proved correct. Defended in theory as a proper exercise of judicial power, judicial review, as he saw it, amounted in practice to the exercise of all powers of government, legislative, executive, administrative, as well as judicial. But even in theory, Haines argued, the principle of judicial review was tantamount to a recognition that the three departments of government were no longer coordinate (p. 530). And he especially objected to the “fear psychology” promoted by the philosophy of judicial review, which he traced to the ancient argument, “as inconclusive as it is unfounded,” that popular government must lead to ruin, chaos, and tyranny” (p. 538).
13. Higgins, Thomas J., Judicial Review Unmasked (West Hanover, MA: Christopher Publishing House, 1981), p. 269.Google Scholar
14. Ibid., p. 225.
15. Ibid., p. 130.
16. Commager, Henry Steele, Majority Rule and Minority Rights (New York: Oxford University Press. 1943), p. 55.Google Scholar
17. Ibid., pp. 74–75.
18. Ibid., Abraham Lincoln took the same position but stated it in his own style. Alluding to the Dred Scott case without mentioning it by name, in his First Inaugural Lincoln allowed that constitutional questions decided by the Supreme Court were binding “in any case, upon the parties to a suit, as to the object to that suit,” and that these decisions are “also entitled to very high respect and consideration in all parallel cases by all departments of government.” He then acknowledged that the Court might err in its decisions, but as long as a decision was limited to a particular case, he thought that the arrangement was preferable to “the unknown evils of a different practice.” But he warned his fellow citizens that, “if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal action, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Inaugural Addresses of the Presidents of the United States (Washington, D.C.: Government Printing Office, 1962), p. 124.Google Scholar
19. Haines, , American Doctrine of Judicial Supremacy, pp. 249–51.Google Scholar
20. Ibid., pp. 252–53.
21. The paradoxical consequences of this switch of positions may be illustrated by recalling the following comment on Commager made in 1966 by Dean, Howard E.: “After making an incisive attack upon judicial review in the name of majority rule, Commager found himself in the odd position of protesting that public sentiment in favor of judicial review is so strong that we cannot rid ourselves of it! But surely there is something amiss in an attack on judicial review as an undemocratic institution which admits the presence of such popular support for the very institution it condemns” (Judicial Review and Democracy [New York: Random House, 1966], p. 48).Google Scholar Conservative critics of judicial review today have no problem with it; but neither do the liberal supporters of judicial activism, who openly admit that the practice is undemocratic.
22. For examples of the use of these terms, see Brest, Paul, “Interpretation and Interest,” Stanford Law Review 34 (1982): 765;CrossRefGoogle ScholarGray, Thomas, “Do We Have and Unwritten Constitution?” Stanford Law Review 27 (1975): 703–18;CrossRefGoogle ScholarMcKay, Robert, “Judicial Review in a Liberal Democracy,” in Liberal Democracy, ed. Pennock, J. R. and Chapman, J. W. [Nomos XXV] (New York: New York University Press, 1983);Google Scholar and Lief H. Carter, Contemporary Constitutional Lawmaking, especially chapter 3, “The Failure of Interpretive Theory.”
23. See Perry, , Morality, p. 182.Google Scholar
24. Choper, Jesse H., Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (Chicago: University of Chicago Press, 1980), p. 2.Google Scholar This may be seen as possibly conflicting with the position taken by John Hart Ely, who thinks that the Court should work on “representation-reinforcing improvements” to keep the channels of political change open (Democracy and Distrust).
25. Ibid., pp. 67–68.
26. Hamilton did insist that without judicial review “all the reservations of particular rights and privileges would amount to nothing” (The Federalist, No. 78, [Modern Library edition], p. 505Google Scholar), but he never admitted that the practice would violate the principle of popular government. See also Rostow, Eugene V., “The Democratic Character of Judicial Review” (Harvard Law Review 66 [1952]: 193–224),CrossRefGoogle Scholar which has been reprinted together with a qualified rebuttal by Mace, George, “The Democratic Compatibility of Judicial Review,” in Judicial Review and American Democracy (1988), pp. 237–55.Google Scholar Referring to Aristotle's classification of the forms of government, Mace argues that judicial review is not incompatible with “good democracy.”
27. Leonard W. Levy, “Judicial Review, History, and Democracy,” in Levy, Leonard W., Judgments: Essays on American Constitutional History (Chicago: Quadrangle Books, 1972), p. 28.Google Scholar
28. Bickel, Alexander, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962).Google Scholar
29. Levy, , “Judicial Review,” p. 57.Google Scholar A more recent version of a “gingerly balance” is offered by Tribe, Lawrence H. in his Constitutional Choices (Cambridge, MA: Harvard University Press, 1985).Google Scholar Tribe claims that “[S]aying anything at all about how controversial choices in general might be validated as ‘legitimate’ even if controversial seems nearly pointless these days.& When it comes to legitimacy, all has been said already, and what has been said is all so deeply riddled with problems that it seems hardly worth restating, much less refuting or refining” (p. 3). Yet Tribe denies that he is a cynic or a legal nihilist. For just as he is “not writing for those who feel confident that canons of appropriate constitutional construction may be convincingly derived from some neutral source,” so he is also “not writing for those who have convinced themselves that ‘anything goes' as long as it helps end what they see as injustice” (p. 4). Having thus dismissed both “The Futile Search for Legitimacy” (chapter 1) and “The Pointless Flight from Substance” (chapter 2) and filled the next couple of hundred pages with commentaries on a large number of cases, Tribe concludes with the following curious variant of John Marshall's position as well as language: “We must make choices but must renounce the equally illusory freedom to choose however we might wish to choose. For it is a Constitution — a specific, necessarily imperfect Constitution — in whose terms we are, after all, choosing. And that is the paradox, the mystery, of the struggle we cannot avoid if it is the Constitution, and not solely our own priorities, that we would choose to follow, and to lead, into a better world” (p. 268).
30. Fiss, Owen, “Foreword: The Forms of Justice,” Harvard Law Review 93 (1979): 12.Google Scholar
31. Brest, Paul, “Interpretation and Interest,” Stanford Law Review 34 (1982): 769.CrossRefGoogle Scholar Brest is here replying to Fiss, Owen, “Objectivity and Interpretation,” Stanford Law Review 34 (1982): 739.CrossRefGoogle Scholar
32. Kennedy, Duncan, “The Structure of Blackstone's Commentaries,” Buffalo Law Review 28 (1979): 212.Google Scholar Commenting on this passage in his “The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship,” Yale Law Journal 90 (1981): 1109,Google Scholar Paul Brest writes: “The Madisonian tension — between majority and minority, legislature and court — is just a partial image of the essential and irreconcilable tension between self and other, between self and self” As we shall see, Madison had a solution for tensions which he considered normal in political life. But so did also Marx, who insisted that “man is in the most literal sense a zoon politikon, not only a social animal, but an animal which can develop into an individual only in society,” which then justified him to claim that the right kind of society will be “an association in which the free development of each is a condition for the free development of all.” See Feuer, Lewis, Marx and Engels: Basic Writings on Politics and Philosophy (Garden City, NY: Doubleday, 1959), pp. 267,Google Scholar 29.
33. Brest, , “The Fundamental Rights Controversy,” p. 1112.Google Scholar
34. Ibid.
35. McKay, Robert B., “Judicial Review in a Liberal Democracy,” in Liberal Democracy, ed. Pennock, J. R. and Chapman, J. W. [Nomos XXIII] (New York: New York University Press, 1983), p.133.Google Scholar
36. Ibid., p. 140.
37. Rehnquist, William H., “The Notion of a Living Constitution,” Texas Law Review 54 (1976): 701.Google Scholar
38. The Federalist, No. 10, p. 56.Google Scholar
39. The Federalist, No. 51, p. 340.Google Scholar
40. Ibid.
41. The Federalist, No. 10, p. 54.Google Scholar
42. See St. Thomas Aquinas on Politics and Ethics, ed. Sigmund, Paul E. (New York: W W Norton, 1988), p. 46.Google Scholar [Summa Theologiae I–II.Google Scholar 90. a.4. ad.4].
43. Tushnet, Mark, “Darkness at the Edge of Town: The Contribution of John Hart Ely to Constitutional Theory,” Yale Law Journal 89 (1980): 1040.CrossRefGoogle Scholar
44. The Federalist, No. 1, p. 3.Google Scholar
45. Let it be noted that such an understanding of ideal but at least partially attainable law and politics is shared also by the opponents of judicial review listed above, namely, both the economic determinists and the “usurpationists.” According to the first, it is the division into classes that distorts both law and politics in favor of the ruling class, but in a classless society they look forward to politics would promote the public good and law would be an instrument of justice. Similarly, when judicial review is described as “usurpation,” it is rather clear that its abolition is expected to restore both politics and law to their true nature, namely, as common means for the good of all citizens. The position defended in this article is merely that linking human rights to judicial review necessitates such an understanding of the ultimate nature and potential of law and politics. If one already had such an ideal system, no rights would be in danger of being violated by anyone, and there would be no need for the judiciary to have the power to void the acts of the legislature and the executive encroaching on individual rights.
46. See note 3 above.
47. The Great Debate, p. 41.Google Scholar
48. The Federalist, No. 14, p. 81.Google Scholar
49. Corwin, Efdward S., The Higher Law Background of American Constitutional Law (Ithaca, NY: Cornell University Press, 1959), p. 89Google Scholar [reprinted from Harvard Law Review 42 (1929): 149–85, 365–409Google Scholar].
50. Croly, Herbert, The Promise of American Life [1909] (New York: Capricorn Books, 1964), p. 288.Google Scholar
51. The Federalist, No. 1, p. 3.Google Scholar