A Kansas court has just ruled that it would be unconstitutional under that state’s founding document to spend $548 million on police, infrastructure, health care or welfare. The court’s ruling does not explicitly disclose this, of course, nor will the judges on the panel admit it. But this is what happens when judges, who reside in a magical, apolitical world shorn of scarcity and therefore tradeoffs, mandate hundreds of millions of dollars in new education spending: The money comes from someplace else.
In his lucid and compressed account of the argument of Damon Root’s new book Overruled, the excellent libertarian judicial scholar Ilya Somin has done us the service of presenting in a pithy and powerful way the libertarian vision of the proper place of the Supreme Court in our constitutional system. The key conflict these days is between libertarians and (social) conservatives, and the key interpretive choice is between “originalism” and deference to legislatures.
Recently, Bryan Caplan put up a Facebook post by “political scientist and game designer Chris McGlothlin” on the Star Trek episode Omega Glory. That is the one where Kirk goes to a planet and instructs the Yangs about their document, “The Constitution of the United States.” The Yangs – through centuries of decline – cannot even read the document properly and do not understand its meaning. Kirk corrects them. For many originalists, Omega Glory is a metaphorical tale of how the Supreme Court and the modern legal culture have misunderstood the Constitution.
McGlothlin doesn’t seem to like the episode, but to my mind his post makes one mistake after another. First, he writes that “we never see a copy of the Bill of Rights in the bundle of aged parchments Kirk leaves them. . . . Without the Amendments, those Kohms are goners.
I am not sure what this point is supposed to mean. The Bill of Rights is part of the Constitution, so what is the problem? Moreover, the Bill of Rights is important, but these amendments are hardly the only important ones. The original Bill applied only to the federal government. If one wants additional protections against the states, one has to look to the 14th Amendment. And one must look there (and elsewhere) for equality limitations. The unamended Constitution was a great start, but one of the best things about the Constitution is that it provided for amendments, which continued to improve the document.
When Justice John Paul Stevens retired from the U.S. Supreme Court in 2010, Senate Judiciary Chairman Patrick Leahy complained that “We have right now a very, very activist, conservative activist, Supreme Court. . . . I would hope that the president’s nominee can get us back away from that.” Leahy was, presumably, quite happy with the nomination of Elena Kagan to succeed Stevens.
In her short time on the bench, Justice Kagan has closely followed the voting pattern of Justice Ruth Bader Ginsburg. On the other hand, Justice Clarence Thomas has been singled out by Senator Leahy as one of the “most activist judges we have right now,” and by activist he meant judges who “would strike down a law passed by the people and substitute something of their own,” and Justice Samuel Alito has been denounced as a pivotal figure in the “divisive” and “activist conservative bloc” on the Roberts Court.
So which of these justices most often votes to strike down laws “passed by the people”? The answer is
A few months ago, Justice Ruth Bader Ginsburg explained why she needed to stay on the Court in part by claiming “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.” Justice Ginsburg was needed to help lead the dissenters and push back against judicial activism. It is a nice story, but has little relation to the truth. In fact, the Roberts Court has a credible claim to being the least activist Court in the history of the United States.
My daughter enjoys horrifying me with tales of daily life in a modern high school, and who am I to deny her such small pleasures. But lately, she’s decided to provoke me with her history lessons on the early republic, and that’s just taking things too far.
For the first post in this series, see here.
This post discusses the textual arguments supporting judicial review. In this area, there are two issues. The first is whether the Constitution takes priority over ordinary legislative action; the second is whether the courts get to determine whether legislation violated the Constitution.
It appears that virtually everyone agrees on the first issue that the Constitution takes priority over ordinary legislation. This appears to follow from the meaning of the Constitution (and perhaps as well from other provisions in the Supremacy Clause). It is the second issue where there is dispute: whether the courts get to determine whether legislation violated the Constitution or whether the courts should defer to the legislature’s determination that the legislation conformed to the Constitution. Put differently, where in the Constitution does it say the Courts get to say what the Constitution meant rather than the legislature?
One of the questions asked of originalists is whether the original meaning ever clearly resolves an important constitutional issue. While I think that the uncertainty of the original meaning is overstated, it is true that many issues require further investigation. The ironic thing is that one area where the original meaning is quite clear is an issue where for a couple of generations people regularly asserted that the original meaning was the opposite of what it actually was: judicial review.
For a couple of generations before the last 10-15 years, people regularly claimed that the Constitution did not provide for judicial review and that Chief Justice John Marshall invented it in Marbury v. Madison. Yet, nothing could be further from the truth – judicial review is clearly established in the text and history of the Constitution.
This is an important issue. After all, if judicial review was made up by the Court, then this makes it more difficult to argue that the Court should follow the original meaning of the Constitution when conducting it.
The claim about the original meaning fit with the prejudices of the dominant view during this period. In addition to its implicit endorsement of nonoriginalist adjudication, this view about judicial review often drew a distinction between judicial review of federal laws and judicial review of state laws. This view sometimes acknowledged that judicial review of state laws was contemplated by the original meaning, but it still insisted that judicial review of federal laws was not. Thus, this claim fit with the New Deal view that judicial review of the federal government should be lax at best.
A century ago, a brilliant young lawyer named Felix Frankfurter spoke at the 25th anniversary of the Harvard Law Review. His speech was entitled “The Zeitgeist and the Judiciary.”
At 30, Frankfurter was already a central figure in progressive circles, and would prove one of the most influential American jurists of the 20th century. During the first quarter-century of his adult life, he maintained a regular correspondence with Justice Holmes, regularly wrote legal commentary for Herbert Croly’s new magazine, The New Republic, co-founded the ACLU, and served as advisor to Franklin Roosevelt. In the next quarter-century (1939-1963), he became one of the most influential and prolific Supreme Court justices in American history.
“The Zeitgeist and the Judiciary” is a remarkable exemplar of early progressive jurisprudence. His brief, candid remarks display the main aspects of the progressive political and constitutional project.
Recently, Lino Graglia published a review of Akhil Amar’s new book that made some claims about the basis for judicial review in the Constitution. Lino wrote:
Constitutional law is the product of judicial review, the power of judges to invalidate policy choices made by other officials of government on the ground that they are prohibited by the Constitution. Although the power obviously creates the danger of making the judiciary — more specifically, the Supreme Court — superior to the legislature and the ultimate lawgiver, it is not explicably provided for in the Constitution. [MR note: does Graglia mean explicitly or explicably?] It was established and defended by Chief Justice John Marshall in the famous case of Marbury v. Madison, however, on the ground that it is inherent in a written constitution. This was not correct in that other nations had and have written constitutions without judicial review. Limiting judicial review to enforcement of a written Constitution does, however, serve the purpose of making it a tool of constitutionalism rather than simply a transference of policymaking power to judges.
Lino’s claim is not entirely clear, but it can be interpreted as asserting that judicial review is not really in the Constitution. While Lino may or may not mean this, this claim about the lack of basis for judicial review used to be very common. It obviously supports nonoriginalism. If the power of judicial review is just made up, then one might argue that there can be little objection to judges exercising that power by making things up as well.
But judicial review is not just made up. In recent years, scholars have argued persuasively that the Framers expected judicial review of the Constitution. But, even more importantly, judicial review has a strong basis in the constitutional text. While I cannot go review all of the arguments, I will try to hit the high points.