“If men were angels,” James Madison wrote, “no government would be necessary.” Or, “if angels were to govern men, no controls on government would be necessary.” Madison believed that men are about as good as they can ever be, and since no angels are available to rule, we need checks and balances.
Thomas Jefferson added the idea that “man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him?” The Supreme Court claims the ultimate say in the American legal system through the doctrine of judicial review, which allows the Court to nullify any state or federal law it considers inconsistent with the Constitution. Jefferson believed judicial review to be a dangerous assumption of power by the Court that “would place us under the despotism of an oligarchy.” To Jefferson, rule by a Supreme Court is no better than rule by an English King. Maybe worse, since nobody even suggests that the Court rules by divine guidance.
For this reason and others, Jefferson and the Founders insisted on a written constitution. They believed this was the only safe way to institutionalize majority rule and to protect the people’s liberties. The English constitution was unwritten, and Americans thought they suffered greatly under it. Their overriding fear was of a despotic central government—like the Crown and the Crown’s judges. They thought the written constitution, by clearly allocating power and rights, would prevent that.
But a written constitution works the way the Founders wanted only if there is no judicial review. If there is judicial review the situation reverses and the people are worse off than they would be without a constitution. Supreme Court Justices, who obey no charter, have to justify their actions to a higher authority. If their government is a democracy—like modern-day England—they must base each ruling on the statutes of Parliament. If the nation is not a democracy—like feudal England—the judge still must act on behalf of ruling authority—the reigning king or queen. In either case, the judge’s power could be corrected or reversed. Of course, it is possible to have a constitution where the judges themselves rule without being subject to any higher authority. This would be a form of absolutism, like an absolute monarchy with more than one ruler, or like the ancient Judges of Israel. In America, under judicial review, the Supreme Court contends that the country’s founding document authorizes it to be the final interpreter of the meaning of that document. The Court says it is acting on behalf of a higher authority, the Constitution, but as a practical matter it is not subject to correction or reversal.
When judges assume a role as the final interpreters of the Constitution, they inextricably intertwine themselves with the document they interpret. The Court’s opinions routinely employ the fiction that, when the Justices speak, it is really the Constitution speaking through them. The practical result is that when challenging the Court, one appears to challenge the fundamental document itself. The natural reluctance to challenge the Constitution discourages a political response to the Court’s rulings; these rulings are then enforced, whether persuasive or not.
Judicial review presents a critical “Who is to decide?” issue. The Constitution itself does not say who is to interpret it. It creates three separate and equal branches. It does not authorize one branch to bind the other two by its construction. John Marshall thought the Founders had intended to give the Supreme Court the power to interpret the Constitution for the other branches but had inadvertently failed to write it in. Jefferson thought the Constitution’s silence on this issue was exactly what was intended—that each branch was to have equal and unlimited authority to interpret the Constitution for its own purposes without one branch setting over the other two.
As a lawyer, Jefferson understood that the power to construe or interpret a document is the critical power. The Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” Its words will mean whatever the interpreter wants them to mean. The Constitution, if the Court has the ultimate say, is a Judicial Constitution. As Jefferson warned in a letter to Wilson Cary Nicholas on September 7, 1803; “Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction.”
He amplified these views in a letter to Judge John Tyler in 1810. The law in the hands of John Marshall “is nothing more than an ambiguous text, to be explained by his sophistry into any meaning which may subserve his personal malice.” Judicial review, he argues, allowed for a “Supreme Court “which from the citadel of the law can turn its guns on those they were meant to defend.” The Justices, by l810, had “erected themselves into a political body with the assumed functions of correcting what they deem the errors of the nation.”
Judicial review is incompatible with what we know the Founders did intend—federalism, majority rule, the sovereignty of the individual, the separation of powers, and checks and balances. They did intend that each branch would check the other—that each would have an independent power to determine the meaning of the Constitution. In other words, Jefferson believed the Constitution intended concurrent review by each branch rather than judicial review; as he wrote in his First Annual Message to Congress, December 1801, “Our country has thought proper to distribute the power of government among three equal and independent authorities constituting each a check upon one or both of the others in all attempts to impair its constitution.” To “make each an effectual check it must have a right in eases which arise within the line of its proper function where equally with the others it acts in the last resort and without appeal, to decide on the validity of an act according to its own judgment and uncontrolled by the opinions of any other departments.” Jefferson naturally recognized that conflict may well arise; such conflict, however, would produce “less mischief than if one [branch] is set over the other.” Surely, if the Founders had intended to set one branch over the other, they would have said so. Surely, as a matter of democratic theory, Jefferson is right that the elected branches can not be less equal than the judiciary. The elected branches must have rights at least equal with unelected judges to determine the meaning of the Constitution. Judicial supremacy, said Jefferson with inexorable logic, could not, in the long run, coexist with democracy.
In a letter to Spencer Roane, Jefferson, then age 75, sharpened his point. It is “an axiom of eternal truth in polities, that whatever power in any government is independent [unchecked], is absolute also: in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes” (emphasis added). Judges who cannot be removed are “the most suspect source of decision in a democratic government.” Judges are “effectually independent of the nation.” Finally, the “most suspect source of decision” remains suspect even if it is made up of the best men in the country: “it is the office of a good judge to enlarge his jurisdiction.”
Judicial review, in the hands of a “strict constructionist” judge, is like a loaded gun: dangerous, but not necessarily fatal. Modern Supreme Court Justices, however, speak of a “living” Constitution. By this, they mean they are free to apply current standards—theirs—to fill in gaps in the Constitution, or even to overrule it.
In recent years, some Supreme Court Justices have been surprisingly open in their opposition to democracy. In October 1985, Justice William Brennan told a Georgetown Law School audience that capital punishment is “under all circumstances cruel and unusual punishment prohibited by the Eighth Amendment.” This conclusion ignores the express provision of the Fifth Amendment that people will have to answer for capital crimes with appropriate safeguards: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor be deprived of life, liberty or property, without due process of law.” Justice Brennan, on the other hand, believes that capital punishment is “an absolute denial of the executed person’s humanity” and “irreversibly degrading to the very essence of human dignity.”
The Court’s role, as explained by Justice Brennan, to declare “certain values transcendent” and “beyond the reach of temporary political majorities,” is not consistent with Jeffersonian democracy. It gives the Court tremendous power. Would an angel really want that kind of power?
The position of the modern Justices is, at best, less than candid. For while expressly claiming wide—indeed overriding—discretion, their only claim to authority is the 1787 document. But that document was written in a world that Justice Brennan tells us “is dead and gone.” The Justices believe they should apply current standards to the old document. They are a strange group of runaway agents claiming authority their principal never gave them under a document which they feel free to rewrite and reinterpret without any check or balance.
As Jefferson wrote in an 1804 letter to Abigail Adams:
The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. That instrument meant that its co-ordinate branches should be cheeks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also in their spheres, would make the judiciary a despotic branch.
Learned Hand largely agreed with Jefferson’s analysis of judicial review. In The Bill of Rights (1958), Hand argued that judicial review is irreconcilable with both the Constitution and democracy. It certainly does not accord. Hand continued, with “the underlying presuppositions of popular government to vest in a chamber, unaccountable to anyone but itself, the power to suppress social experiments which it does not approve.” The Constitution does not authorize the Court to “assume the role of a third legislative chamber.” Hand did believe that judicial review was a practical necessity in extraordinary cases. Each branch exercising its independent power to interpret the Constitution could lead us, in practice, to two or three different interpretations. Jefferson recognized this possibility when he declared the Alien and Sedition Laws unconstitutional while Congress and the federal courts deemed them valid. Certainly, the branches could come into sharp conflict. But is this so terrible? The theory of checks and balances, after all, assumes a good deal of bumping. Similarly, the theory of federalism assumes that some conflict between the states and the federal government could actually be useful. Conflict, after all, is not just unpleasant, it is the way free people move toward a consensus. As Jefferson explained to William Torrance in June 1815, such conflict would still produce “less mischief than arises from giving to any one of them a control over the others”:
It may be said that contradictory decisions may arise in such a case, and produce inconvenience. This is possible, and is a necessary failing in all human proceedings. Yet the prudence of the public functionaries, and authority of public opinion, will generally produce accommodation.
It is important to remember that the Founders hated the King’s judges at least as much as the King. They designed the legislature to make laws. The members are supposed to represent the people of their districts. The introduction of a bill gives the public notice that its interests may be altered. A proposed law may arouse fears among those who will be hurt by it. As Marsilius of Padua wrote, “Anyone can look to see whether a proposed law leans towards the benefit of one or a few persons more than of the others or of the community, and can protest against it.” Congress is set up to hear from its constituents, hold hearings, and consider what the law will cost and whom it will hurt. The Founders’ purpose was to assure that any law—which of necessity would be enforced against those who did not want it—would be fully considered and supported by public consensus. The process is supposed to be very hard, and normally requires a good deal of compromise. If a majority is not satisfied with the results, it can always refuse to return the representative who voted for it, something it can never do with a federal judge.
The judiciary, since it operates by diktat, does not need to develop a consensus to support its rulings. Indeed, judicial intervention will short-circuit a developing political consensus. For example, in the early 1970’s, New York and a dozen other states had developed majorities to agree on some form of legal abortion. The issue was very difficult but democracy was working it out. The Supreme Court, however, in its 1973 Roe v. Wade decision, removed abortion from the political process by finding it to be constitutionally regulated. Following that decision, the winners did not need the political process, and the latter would no longer be helpful to the losers. Because it is not based on consent. Roe v. Wade has festered bitterness and violence for 20 years. Those like Justice Brennan who criticize a majoritarian legislative process for not rectifying “claims of minority right” certainly cannot argue that a decision by a majority of judges operates any more effectively in that regard.
European judges do not declare legislative acts to be illegal. In England, Parliament exercises ultimate sovereignty. A European intellectual, looking at our Court’s unreviewable power to do just that, would probably say that America is a judicial dictatorship. The legislature in the United States, he would point out, can raise taxes and build roads but the important questions, those that decide what kind of country this is, all end up in the Supreme Court. We might answer that the Court is the “least dangerous” branch, as Alexander Hamilton said; it has no executive or legislative authority; it does not make rules; it merely decides cases that come before it. But the trouble with this answer is that the Court is able to select the cases that come before it. During its 1992-93 term, the Court refused to hear 7,233 cases but accepted 97, or 1.3 percent. In 1950, by contrast, the Court heard 10 percent of the cases brought to it, which indicates it was then acting as a court of appeal over the lower federal courts. The Court’s power to pick from among such a large number of cases gives it the practical ability to rule on issues the Justices think important, to act, in effect, as a Court of National Policy. The Justices, of course, may have the power to pursue a legislative agenda, but not exercise it. On the other hand, the Court may decide a lot of things the legislature should be deciding.
The Supreme Court is usually described in political terms—”conservative,” “liberal,” “moderate,” “activist,” “restrained”—but the political labels cover up the real problem, which is that the Court may be whatever it chooses: it has the unlimited power to define its own powers. The issue is its power rather than its orientation. Power may be limited in a constitution, but orientation cannot. Nor can orientation be predicted when power is not limited.
The mechanism for everyday federal control over state and local majorities is the 14th Amendment, adopted in 1868. The Bill of Rights only restrained the actions of Congress and the federal government. The 14th Amendment, however, imposed federal power over the actions of the states. It provides that no state shall “deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws.” Those words are very general; what do they mean? Initially, in the 1873 Slaughterhouse Cases, the Court said it did not find in the amendment’s language “any purpose to destroy the main features of the general system” the Founders had established. The Louisiana legislature had granted one company a slaughter-house monopoly, thereby putting its competitors out of business. The competing butchers claimed 14th Amendment protection against the legislative power of their own state, which deprived them of their livelihood. The Louisiana law was hardly appealing but the Court upheld it, saying that to hold otherwise would be “so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the state governments by subjecting them to the control of Congress” and would constitute “this court a perpetual censor upon all legislation of the States.” In less than 20 years, however, the Court reversed itself and took up the “perpetual censor” role it enjoys today.
The 14th Amendment was also the wedge for applying the restraints of the Bill of Rights on state and local governments. Adopted in 1791, the Bill of Rights prohibited the federal government from interfering with specified inalienable rights, such as the freedoms of speech and religion. The Bill of Rights did not limit the power of the states. The state constitutions and courts, from 1791 to 1937, determined the extent to which a state would enjoy free speech and religion and the other Bill of Rights provisions. Theoretically, a state could have adopted a state religion or established procedures to suppress free speech. Or it could have taken its citizens’ property without compensation. No state, of course, wanted to do those things; the people did not desire self-imposed tyranny. Each state’s constitution protected against those things. Before the 1937 federal judiciary takeover, America was a constitutional democracy. The 14th Amendment broke up the old system; it required the states to afford to their citizens “due process of law” and “equal protection of the laws,” as found by the federal judiciary. The Supreme Court, in the 1937 decision in Palko v. Connecticut, began to “incorporate” the Bill of Rights provisions into the 14th Amendment through the due process clause. This meant the Bill of Rights, after 1937, applied to state and local governments to whatever extent the federal judiciary determined. Incorporation added more vague words—freedom of religion, freedom of speech, right of assembly, unreasonable searches, double jeopardy, self-incrimination, and liberty and due process to the vague words of the 14th Amendment—property, liberty, due process again and equal protection. Beginning around 1890, the Court used these indefinite words to defeat majority positions and to throw out state social and economic legislation such as child labor laws. It used the theory that freedom of contract was part of “liberty” and could not be taken without due process. Under severe pressure from Franklin Roosevelt, the Court abandoned this line in 1937. But it immediately developed a new and more intrusive theory—that while it agreed to restrain itself on economic regulation, it would not restrain itself with respect to what it called “personal” rights. The Court argued that “personal” rights found in the Bill of Rights were more important than property rights. Ever since Palko extended the Bill of Rights to state and local government, the Court has been able to enforce broad concepts such as freedom of speech, as it interpreted them, against a state and local majority and against the national majority.
The Court’s power, and federal power, were originally held in place by a series of specific barriers as well as the principles of federalism and the separation of powers. During the 19th century, the central government, largely because of the Civil War, gained substantial powers, but the specific barriers that limited it were not directly challenged. They were challenged and began to fall in the 1920’s; by the late 1930’s and early 1940’s they were falling fast; and by the 1960’s they were gone.
The old barriers were: (1) Defined Powers—The Founders made it very clear that the national government was granted only defined powers and the states reserved all the powers not granted. This barrier collapsed with the Court’s 1923 decision in Massachusetts v. Mellon, determining that the spending power was not limited to acting in aid of a specified power but could be in aid of the “general welfare” clause. (2) The Commerce Clause—One of the defined powers given to Congress is the power “to regulate commerce” between the states. How expansively could you read that? In the 1942 case Wickard v. Filburn, the Court held that a farmer growing wheat for his family had an effect on interstate commerce which authorized regulation of his planting. The Court also held that the commerce power can even be used to regulate matters with slight or no apparent relation to commerce, such as the transportation of plural wives across state lines by Mormons (Cleveland v. U.S.) and racial discrimination in motels, local restaurants, and recreation parks (on the grounds that the food served had ingredients from other states).
At first, the Court acted with the support of the majority. The majority wanted the government to ameliorate the Depression and, in the 1950’s, to end discrimination. Perhaps there was enough popular support to push through needed constitutional amendments to authorize the action. Perhaps there was not. The Court, by interpretation, extended the national majority’s power without amendment. The Court assumed the de facto power to amend the Constitution without securing ratification from three-fourths of the states. The problem with such a power is that it can be used as easily to subvert majority will as to support it.
Under judicial review, the social views of the “adversarial culture” work their way into constitutional law. In March 1994, the Court unanimously overturned a lower court’s judgment that the rap group 2 Live Crew had infringed the copyright of Roy Orbison’s 1964 song “Oh, Pretty Woman.” The rap version, the Court found, could fall under the fair use doctrine, which allows part of a copyrighted work to be used without permission for purposes of criticism, comment, news-reporting, teaching, scholarship, or research. The 2 Live Crew version changed the original’s pretty woman walking down the street into a “big hairy woman,” “bald-headed woman,” and “two-timing woman.” In Campbell v. Acuff-Rone, Justice Souter said: “The later words can be taken as a comment on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies.” The Court’s words can be taken as a comment on how far judges can remove themselves from the way ordinary people think.
The Court styles itself as the protector of individual rights and self-expression against the will of the oppressive bourgeois majority. Crime, in this context, is a form of self-expression as well as social protest and criticism. The Court routinely overrules the actions of local police, boards of education, and the state laws under which they act. The beneficiaries of the Court’s protection are criminals, atheists, homosexuals, flag burners, Indians, illegal immigrants, terrorists, convicts, the mentally ill, and pornographers. The Court calls the deleted state laws “arbitrary” or “without rational basis,” extravagant language which, as Robert Nagel points out in his 1989 book Constitutional Cultures, shows no respect for the acts of popular assemblies. The Court’s attitude is the opposite of Learned Hand’s belief that “a law which can get itself enacted is almost sure to have behind it a support which is not wholly unreasonable.” As Professor Nagel notes, the Court has acted “to isolate itself from the general culture, retaining ties of language and intellectual approach only to an academic elite.”
The Court often accepts as facts things that very few people in the country believe. For example, in May 1994, a federal district court ordered the Washington National Guard to reinstate a lesbian nurse because the military’s policy against homosexuals was based solely on prejudice. The Court found: “There is no rational basis for the Government’s underlying contention that homosexual orientation equals ‘desire or propensity to engage’ in homosexual conduct.” Most people, judging from their own propensities, are fairly certain that orientation does equal desire.
The majority has given the Court’s policies a fair chance—30 years, in fact. Those policies have not been successful. The Court’s failure is disturbing because the primary areas the Justices took over—education and law enforcement—are not that complicated. The country handled both successfully in the much-maligned 1950’s. Schools and criminal justice, following the majority’s policies, educated children and maintained law and order at reasonable cost. Not many people in America think children of either race are better educated and trained today than in the 1950’s. According to the FBI Uniform Crime Reports, violent crime (murder and other non-negligent homicide, rape, aggravated assault and robbery) rose from 288,460 in 1960 to 387,390 in 1965 to 875,910 in 1973 to 1,923,270 in 1992. A New York Times poll of June 1994 reports that more than a third of New Yorkers said that because of their fear of crime they had moved to new neighborhoods or were planning to. The majority’s solutions might have been as feckless as the Court’s, but it is hard to believe.
The federal courts now exercise a level of control over public life that the Papacy would no longer consider. The courts supervise and, in effect, administer schools, prisons, mental hospitals, housing agencies, and tax collectors. Ruth Bader Ginsburg, prior to her confirmation hearings in 1993, wrote to the Senate Judiciary Committee and said that federal judges find these “chores” to be “uncongenial and unwelcome.” Had “state and federal legislatures” done a better job, she wrote, “the managerial jobs the courts took on, generally with reluctance and misgivings, could have been avoided.” The Court’s reluctance has not prevented it from taking over, by 1993, 80 percent of all state prison systems and about 33 percent of the 500 largest local jails. Nor does the courts’ reluctance appear in the language of the consent decrees. The decree covering the Bryce Mental Hospital in Alabama, for example, specifies that “Thermostatically controlled hot water shall be provided in adequate quantities and maintained at the required temperature for patient or residential use (110 degrees F at the fixture) and for mechanical dish washing and laundry use (180 degrees F at the equipment).” This kind of demand led Archibald Cox in The Role of the Supreme Court in American Government (1976) to conclude that the “individual federal judge became, in effect, the chief executive or administrator of Bryce Hospital.”
Similarly, an individual federal judge runs the prison system of South Carolina pursuant to a 1985 consent degree settling a class action brought by the American Civil Liberties Union National Prison Project. The governor and legislature have nothing to say about it. The 169-page decree specifies the standards for food, clothing, gym, library, square feet per convict, and grievance procedures. The decree further specifies a timetable for rehabilitation and the new construction of prisons. It prohibits “triple celling.” The state must pay the attorney fees of the ACLU for securing the decree and any future fees incurred in enforcing it. If the federal judge believes the state is not complying with the decree he “shall order immediate relief, which may include population reductions including release” of prisoners.
Prison systems run by federal judges have a different character from those run by state legislatures. A federal judge in North Carolina, James McMillan, has ordered the state to purchase recreational equipment, including three sets of horseshoes, three guitars, five frisbees, fifty decks of playing cards, and a piano. South Carolina, saving itself some legal fees, agreed without court action to a recreational program whose stated purpose was: “To provide for comprehensive recreational activities for inmates on a voluntary basis reasonably comparable to those available in the community.” This includes but is not limited to “horseshoes, croquet, badminton, [and] paddleball.” Regional tournaments are to he scheduled annually for, among other things, “chess, checkers, and backgammon.” The backgammon winner of the Regional Tournament goes on to the SGDC [South Carolina Department of Corrections] Championship Tournament unless the “warden of the host institution” notes a “caution which would prevent the inmate from being transported.” Will the released population be able to find competitive backgammon players and appropriate croquet lawns on the outside?
“Liberty,” wrote Learned Hand in 1944, “is the product not of institutions, but of a temper, of an attitude toward life; . . . [of a] faith in the sacredness of the individual.” Courts do not, in fact, act on neutral principles. The spirit of liberty is the “spirit which is not too sure it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.” Liberty “will prevail only as long as it is supported by the community. … A society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.” The ultimate question is whether the rights of individuals are safer in the hands of the majority than in the hands of appointed guardians.
With power goes responsibility. The Court, Professor Corwin wrote, has “made itself morally unanswerable for the safety and welfare of the nation to an extent utterly without precedent in judicial annals.” A free society, wrote beamed Hand, “will find its own solutions more successfully if it is not constricted