1. The Evolution of Judicial Review GOVT 2305

2. 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.

3. 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.

4. Over time I’ve complied a small number of blog posts related to judicial review. Click here to scroll through them. Click here to scroll through them

5. Judicial ReviewJudicial Review (wikipedia)wikipedia

6. Let’s start with a definition. This comes from the Legal Information Institute:Legal Information Institute

7. “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.”

8. 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.”constitution

9. 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.

10. 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?

11. 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:this quote from Federalist 45

12. “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.”

13. 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.enumeratedimplied powers

14. These clauses are: The Commerce Clause The General Welfare Clause The Necessary and Proper ClauseCommerce ClauseGeneral Welfare ClauseNecessary and Proper Clause

15. 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.

16. 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. equal protection clause

17. 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.

18. Before describing this further, two clarifying points should be made about the Supreme Court.

19. 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.

20. 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.

21. Judicial Review is part of the scope of the court’s appellate powers.

22. 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.

23. 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.test cases

24. 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.test case

25. These can also force the courts to reconsider how they have interpreted constitutional language in the past. Previous precedence can be overturned.

26. A classic example: Brown v. Board Brown v. Board

27. The case was brought forward deliberately to force the courts to reconsider its previous ruling in Plessy v. Ferguson. Plessy v. Ferguson

28. 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 14 th Amendment. The effort failed. The court ruled that separation into equal facilities did not violate the spirit of equality.the equal protection doctrine

29. This is Homer Plessy, an “octoroon” who deliberately challenged Louisiana’s Separate Car Act.octoroonSeparate Car Act

30. 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.Citizens’ Committee to Test the Constitutionality of the Separate Car Law Brown v Board of Education

31. Individuals and corporations can also be the source of test cases. Here are recent examples:

32. Robert A. LevyRobert A. Levy. Hobby Lobby. National Federation of Independent Business. Hobby Lobby National Federation of Independent Business

33. 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.

34. We will discuss this more thoroughly in the section on the Supreme Court.

35. Why is judicial review considered necessary?

36. It is essential if the limits imposed by the Constitution are to be meaningful.

37. 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.

38. 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.

39. 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.Council of Revision

40. It was determined that the Council of Revision would likely become tyrannical. Nothing could check it. The issue was unresolved.

41. 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?Supremacy Clause

42. 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. Federalist #78wikipediaAlexander Hamilton

43. Let’s review the argument.

44. He begins by emphasizing the weakness of the Judiciary

45. “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.”

46. “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.”

47. 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.

48. 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

49. 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.

50. “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.”

51. 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.

52. “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.”

53. “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.”

54. 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.

55. “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.”

56. “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.”

57. 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.

58. “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.”

59. “... 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.”

60. Again, in interpreting the Constitution, judges and justices must exercise “judgment,” not “will” in interpreting the law.

61. “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.”

62. 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.

63. “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.”

64. “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.”

65. 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.

66. 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.

67. 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.Marbury v. Madisonwikipedia

68. 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)Marbury v MadisonFindlaw

69. 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.The Judiciary Act of 1789 Writs of Mandamus

70. 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.section in the law

71. 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.

72. 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.election of 1800Judiciary Act of 1801

73. 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.midnight appointments midnight judges

74. 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.

75. the Federalists "retired into the judiciary as a stronghold“ - Thomas Jefferson

76. 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.

77. 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. John Marshall Fourth Chief Justice of the Supreme Court

78. 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.the greatest of the chief justices of the court

79. "My gift of John Marshall to the people of the United States was the proudest act of my life." John Adams, President

80. 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. Click here for information on the Marshall Court

81. Marbury was one of the midnight appointees made by Adams prior to leaving office.

82. Marbury’s 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.

83. It was signed and sealed, but not delivered.signed and sealed, but not delivered

84. 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.Judiciary Act of 1789textWrits of Mandamus

85. 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.

86. 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.

87. 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.judicial review

88. The power of judicial review was a far more significant power than the writ of mandamus.judicial review

89. This decision was written out in the case of Marbury v. Madison. It asked and answered three basic questions:Marbury v. Madison

90. 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? Nolegal remedy writ of mandamus

91. The third clause claims that the writ violates the constitution – the fundamental law. Here is the part of the Constitution that mattered:

92. Article Three, Section Two, Clause Two 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.

93. 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.

94. 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

95. 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

96. Since it was not warranted, it was not legitimate, meaning it was null and void.

97. 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.

98. 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.Dred Scott decisionMissouri Compromise of 1820

99. 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.

100. But it has become more common over time

101. For a history of the use of Judicial Review by the Courts click hers: The United States Supreme. Court and judicial review of Congress, 1803-2001The United States Supreme. Court and judicial review of Congress, 1803-2001

102. It contains this graph showing the increased use of judicial review over time.

104. And here: “The conversation has changed but the Court-Congress dialogue continues.” It also contains graphs showing its increased frequency:The conversation has changed but the Court-Congress dialogue continues

108. So now the courts can strike down laws they judge to violate the Constitution. So What?

109. 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.

110. 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.

111. 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.

112. 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.

113. 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 14 th Amendment was meant to overturn the court’s decision in Dred Scott, but there have been few other similar actions.

114. 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?

115. 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?

116. 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.

117. 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?

118. 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. Exploring Constitutional Conflicts

119. As we will see, different theories of interpretation focus on different sources of interpretation.

120. There are two general ways to interpreting the Constitution 1 - Strictly 2 - Loosely (see Theories of Constitutional Interpretation)Theories of Constitutional Interpretation

121. Click here for past blog posts on - Loose Construction - Strict ConstructionLoose ConstructionStrict Construction

122. The following website divides these theories into originalists and non- originalists. 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?following website

123. 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.

124. So the debate rages. Here’s a bit of background on each

125. Strict (or Narrow) Construction 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?click here for an explanation

126. There a couple ways – at least -- to strictly or narrowly interpret constitutional language: Original Intent Textualism Original Intent Textualism

127. 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.court

128. Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non- textual sources such as the intention of the legislature in passing the law.formaliststatute intention

129. 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.plain meaning

130. 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.

131. 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.

132. 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.

133. Two relevant terms The Living Constitution The “Penumbra” The Living Constitution The “Penumbra”

134. 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.constitutional interpretationConstitution

135. 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.

136. Certain rights can be found in the "penumbras" and "emanations" of other constitutional protections

137. Example: The Right to Privacy It’s supporters argue that the right can be found in the penumbra surrounding the 3 rd, 4 th, 5 th and 9 th amendments. Opponents argue that if the word “privacy” is not spelled out in the Constitution, it does not exist.The Right to Privacy

138. 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.

139. On the current court Stephen Breyer is argued to be a strong supporter of the doctrine of a living constitution.Stephen Breyer

140. Antonin ScaliaAntonin Scalia is a proponent of textualism.

141. Here’s a link to a C-Span video Here’s a link to a C-Span video where Breyer and Scalia debate their respective theories of interpretation.

142. In the next section we will look at the way existing members of the Supreme Court interpret the document.

143. 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:here’s a review of a recent book by a federal judge

144. Click here for more on J. Harvie Wilkinson III, a member of the 4 th Circuit Court of Appeals. Harvie Wilkinson III

145. “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.’”

146. Which provides a nice way to shift over to the next topic:

147. 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?

148. Here are two relevant terms: judicial activism judicial restraint judicial activism judicial restraint

149. 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.

150. 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.

151. 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

152. Judicial Activism

153. 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.

154. 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 4US v Caroline Products

155. 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.

156. 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.

157. 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 Baker v Carr Brown v Board of Education Citizens United v FEC

158. 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 14 th Amendment’s equal protection clause contained an implicit requirement that of one man one vote.Baker v Carrone man one vote

159. 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.

160. 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.

161. 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.

162. 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.

163. 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.

164. The design of the national courts allow for activism.

165. Click here for an article claiming Click here for an article claiming that Citizens United v the FEC was an example of judicial activism.

166. 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.

167. One example was Thurgood Marshall who as a lawyer argued Brown v Board of Education before the court.Thurgood Marshall

168. 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. Elena Kagan Here is a link to a story about her confirmation hearing

169. 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.legislating from the bench

170. 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.

171. 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?Activist Judges: Why are they creating such a stirActivist judges? What's in a nameDisorder In The Court: Activist Judges Threaten JusticeSo Who Are the Activists

172. The Heritage Foundation gets a bot specific on what it means by judicial activism.

173. Nine Types of Judicial Activism Abusing Precedent Contorting Text Importing Foreign Law Judicial Dishonesty Judicial Imperialism Living Constitutionalism Nullifying Rights Playing Favorites Playing Legislator Abusing Precedent Contorting Text Importing Foreign Law Judicial Dishonesty Judicial Imperialism Living Constitutionalism Nullifying Rights Playing Favorites Playing Legislator

174. Critics argue of judicial activism argue that the courts should defer to legislatures. But here’s an argument that they shouldn’t always:But here’s an argument that they shouldn’t always

175. “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.”

176. 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.

177. 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.

178. Judicial Restraint

179. The courts should restrain themselves unless there is an overwhelming need to do so.

180. 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.

181. 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.

182. Judicial Restraint also holds that precedence and stare decisis be deferred to as much as possible. precedence and stare decisis

183. For a look at a reviews of recent books and articles on the subject, click here. click here

184. If you are feeling ambitious, here is an academic paper about Felix Frankfurter, a leading advocate of Judicial Restraint.here is an academic paper Felix Frankfurter

185. One of his many quotesOne 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.”

186. He was one of the dissenters in Baker v Carr – which was discussed above. Baker v. Carr/Dissent Frankfurter Baker v. Carr/Dissent Frankfurter

187. He was concerned that by wading into political disputes the court risked undermining its credibility:

188. ”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.”

189. But judicial restraint has its critics as well:

190. "there is a difference between judicial restraint and judicial abdication.“ – Chief Justice John Roberts, in his concurring decision in Citizens United v FEC.Chief Justice John Roberts

191. “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.Source

192. An alternative theory: Judicial Minimalism While its still early, this is argued to the viewpoint of Roberts and Sotomayor.

193. Judicial minimalism 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

194. 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. Curse of judicial minimalismOne Case at a Time: Judicial Minimalism on the Supreme Court

195. Let’s finish with a caveat

196. 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.

197. 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.Supreme Injustice

198. 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.here is an academic paper

199. The End