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Volume 45, Number 2 (Spring 2007)

Who Gets it Right? Liberals or Originalists?

book cover imageThe Myth of Judicial Activism: Making Sense of Supreme Court Decisions by Kermit Roosevelt III. Yale University Press (New Haven and London), 272 pp., $30.00 cloth, 2006.

Stephen B. Presser

By the celebrated “switch in time that saved nine” in 1937, the United States Supreme Court, succumbing to pressure from President Franklin D. Roosevelt, radically altered its views on the scope of Congressional Power to implement the commerce clause. The Court’s decision permitted Congress virtually to regulate anything and to implement the liberal goals of the Roosevelt administration, pushing the federal government into many areas that had formerly exclusively been the domain of the state and local governments. Since then, it has been the task of “liberal” law professors to come up with theories to justify, in as politically neutral terms as possible, the Court’s 1937 volte-face. Given that enduring pillars of American order are that the Constitution established a government of laws, not men, and that the rule of law should not be subject to arbitrary whim of Presidents or legislatures, there is a perceived need, by those who favor what the Court then did, to demonstrate that it acted pursuant to theories of sound Constitutional interpretation.

This difficulty for liberals became even more pronounced when the Supreme Court, beginning in about the middle of the fifties, began to remake the constitutional law of race, religion, abortion, criminal procedure, and redistricting. Among other things, the Court, for the first time, ruled that racial discrimination in public facilities (including such diverse areas as schools and swimming pools) was unconstitutional. It held that public school-sponsored prayers or bible reading violated the Constitution’s prohibition on laws “regarding an establishment of religion.” It stated that the Fourteenth Amendment’s guarantee that no person be deprived of life, liberty, or property without “due process” of law somehow meant that a pregnant woman had a Constitutionally-guaranteed right to seek an abortion (the so-called “right to choose”). It decided that defendants in criminal cases had the right to be informed that they had the right to remain silent, that, if they were indigent, they had the right to have lawyers appointed to defend them, and that if they were not informed of these rights any evidence obtained from them during interrogation could not be used against them at trial (the so-called “exclusionary rule”). The court ruled that all branches of state legislatures could only be apportioned on the basis of population, because of the Fourteenth Amendment’s guarantee of the “equal protection” of the laws, even though the federal legislature was composed of two branches, only one of which (the House of Representatives) was based on population, while the other (the Senate) was (like the state legislative branches now found to be impermissible) based on pre-existing political subdivisions.

Conservatives criticized these Supreme Court decisions as impermissible “judicial activism,” by which was meant that this was the Supreme Court legislating rather than adjudicating, a task forbidden by the concepts of the rule of law and the political and legal theories of the Constitution’s framers borrowed from Sir William Blackstone and the Baron de Montesquieu. (Lately, of course, as the Supreme Court under Chief Justices Rehnquist and Roberts has occasionally veered in a more conservative direction, the charge of “judicial activism” has come more from liberals.)

Kermit Roosevelt III (great-great grandson of Theodore, and distant cousin many times removed of Franklin), performs a signal service by showing the emptiness of the phrase “judicial activism,” and by suggesting that the real question for evaluating what the Supreme Court does is only whether it follows the Constitution when exercising the power of judicial review (the power to declare an act of another branch of the federal government, or of any state officials, unauthorized by the Constitution). “The Myth of Judicial Activism” is one of the latest of several dozen works by liberal law professors arguing the legitimacy of the liberal results of many Supreme Court decisions. It is also one of the best—tightly-reasoned, relatively easy to understand, and extraordinarily comprehensive both in its coverage and its familiarity with the relevant literature and precedents from the last six decades. It is a very good introduction to current constitutional law, and, as these things go, it is commendably fair-minded, and does a good job at presenting the arguments with which Roosevelt disagrees. His distant cousin would have been very pleased.

Alas, however, one of those well-presented arguments with which Roosevelt disagrees still seems more convincing than his, and it is perhaps of some significance that there has been a need for several dozen books defending the Court’s liberal decisions, each of which has advanced somewhat different arguments, and all of which have been invoked to combat essentially the same powerful critique of those decisions. This critique now usually goes by the name of “originalism,” and holds that the decisions are indefensible because they stray from the “original understanding” of the Constitution’s terms, and wrongly impose the values of some Justices in the place of what the Constitution mandates. Roosevelt repudiates “originalism” because he believes that, in general, it is too difficult to determine the “original meaning” of Constitutional provisions drafted many decades in the past. Or, alternatively, he suggests, the framers of those provisions used general terms which would change meaning over time. Words such as “equal protection,” “due process,” “cruel and unusual punishment,” etc. would have been understood, he argues, to grant future Courts the power to alter constitutional meaning as social conditions changed. Given the malleability of determining meaning in the Constitution, he continues, courts should understand that they and the other branches of the government have some freedom to interpret the constitution, and that the Supreme Court should evolve rules for determining when, given constitutional plasticity, another branch has wrongly read the document.

This, Roosevelt argues, is what was done in most of the liberal decisions he favors. He interprets these decisions (what he calls “doctrine”) essentially to be the Court’s deferring to other branches or state actors only when any persons effected by the laws in question were adequately represented by the relevant law-makers, and when public opinion is consistent with what the legislature or state actor has done. It thus makes sense, he argues, for Congress to use its interstate commerce powers to protect minorities (such as workers or members of minority groups) when their interests have traditionally been disregarded by state actors. It makes sense to bar state-sponsored religious exercises when religious minorities might have little influence, and it makes sense to hold abortion to be a Constitutional right when state legislatures barring the practice disproportionately contain poor pregnant mothers. It makes sense, he urges, to allow racially-based affirmative action when most Americans approve of it as a remedy for prior discrimination, or to forbid enforcement of laws criminalizing homosexual sexual relations when homosexuals are underrepresented in the legislatures, and most Americans have become tolerant of same-sex sexual activity.

There are at least two key difficulties with Roosevelt’s theory (and, as I say, he is more than fair in exposing these). First, it is far from clear that the framers of the Constitution intended its meaning to alter with the ages. Some scholars have made that argument, but, to my mind at least, interpretive materials from or near the founding era (including for example The Federalist (1788) and Story’s Commentaries on the Constitution (1833)) clearly suggest the contrary, and make clear that if the Constitution was to be altered it ought to be done only by means of the Article V Amendment process. Second, it is by no means clear that the Supreme Court is able either to determine with any precision just what public opinion is, or whether a given group is significantly represented in or discriminated against by state or federal legislatures. These are matters that even those well-versed in statistical sampling techniques or theories of political science seem not to have completely mastered, and there is no reason to believe that judges can do better. A theory of constitutional interpretation based essentially on modern social science requires too much of a leap of faith in the judiciary.

Although some constitutional provisions are obscure (no one, at the moment, seems entirely sure what the Ninth Amendment means, for example), most of them are probably clear enough. It is clear to anyone not blinded by ideology, for example, that there is nothing in the federal constitution that clearly prohibits state governments from passing measures regarding or barring abortion, and there is no doubt that the First Amendment’s establishment clause (which only prohibits acts of Congress) was intended to protect state religious establishments, and to leave state governments free to deal with what was then regarded as the necessary religious foundation for good government. For the moment, “originalism” still has the best claim to be the interpretive theory that minimizes judicial “overreaching,” or “judicial legislation,” if not “judicial activism.”

Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law and the Legal Affairs Editor for Chronicles: A Magazine of American Culture.

Posted: September 8, 2007

The ... conservative is concerned, first of all, for the regeneration of spirit and character—with the perennial problem of the inner order of the soul, the restoration of the ethical understanding, and the religious sanction upon which any life worth living is founded. This is conservatism at its highest.

Russell Kirk

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