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THE
CHECKERED HISTORY OF JUDICIAL REVIEW Or How
Our Constitution is Being Amended By Ivan W. Parkins
David Easton (one of my professors and chairman of my dissertation
committee) in his THE POLITICAL SYSTEM describes “ power” as being about how authoritative values are
established. That provides a fruitful
approach to the role of the Supreme Court in our constitutional system. Soon
after WWII, one of the first things that I was required to learn in
Constitutional Law was the Ashwander Rules, rules by which the Court of FDR’s
time believed its own jurisdiction to be limited. It is now difficult to find even a mention
of those rules in more recent texts. And, noting the late Justice Douglas’
statement that rocks and trees should have standing to sue in court, plus the
recent grant of rights by five members of the Court to enemy aliens, do some
Justices recognize any limits whatever to their powers to proclaim what
values are and are not authoritative?
Persons not familiar with the history of the Supreme Court’s reviewing
acts of the elected federal branches are likely to be surprised by how
limited that power has been until recently.
It is not mentioned in the Constitution. Some Founders believed that the equal
branches were equally qualified to interpret the document.
Marbury v. Madison in 1803, a decision drafted by Chief Justice John
Marshall, was the first significant claim by the Court of ultimate authority
over the Constitution’s meaning.
Factually it was a ridiculous case.
Marbury’s commission as a justice of the peace, granted by President
Adams under a very recent Federalist statute, was left lying on the desk of
the outgoing Secretary of State.
Incoming President Jefferson’s Secretary, James Madison, refused to
deliver the commission.
Marshall said that he must, but since Marbury had already taken
another job and was not interested, the case was really moot. And guess who had been the “too slow”
Secretary of State? His name was
Marshall, and as Chief Justice he was another of the Federalists’ last-minute
appointees. In one sense the decision
was an empty political gesture. But,
it was also a legal precedent. It
was fifty- four years later, in the DRED SCOTT Case,
that another Chief Justice, Taney, claimed, for the second time in our
history, a similar power to review acts of the elected branches. His majority decision that the elective
branches had no power to free slaves contributed to the Civil War. That
“precedent” was set aside, after great bloodshed, by the thirteenth and
subsequent amendments to the Constitution, and buried in the mid-twentieth
century.
During the Civil War there were several instances of the Supreme Court
reviewing actions of President Lincoln
and/or the Congress, but none were so prompt or effective as to interfere
much with the war effort. And, soon
changes in the Court’s membership reversed some of them. Gradually the Court’s use of review
increased, rising to a peak in the mid-1930s when the Court declared much of
the New Deal to be invalid. But most
of those decisions were reversed or by-passed by changes in the Court’s
membership or by redrafted legislation.
Professor Robert Dahl of Yale researched the pre-WWII history of
judicial review and concluded that, in nearly all cases where the Court had
attempted to invalidate acts of Congresses or Presidents regarding matters of
significant value to the public, politics had soon reversed the Court. For most of its history, our Supreme Court
has not been very effective in rejecting what the elected branches of our
government chose as authoritative values. Since
WWII the situation has changed. The
Supreme Court has become more “Supreme.”
Why? Alexander Hamilton had
predicted that the Judiciary would always be the weakest of our
Constitutional Branches; it controlled neither the sword nor the purse. But,
are guns and money the only sources of raw power? What if the constitutionally protected
information system, once small and decentralized, were to become vast and
largely united? Today, that system is
able to introduce, teach, and extensively to “establish” authoritative
values. And what if the Supreme Court,
or a majority of its Justices, were to support the values introduced as
authoritative through the mass media? Are mere voting citizens and the officials
whom they elect to office capable of establishing which values are
authoritative today? Who becomes
President and nominates new Justices to the Supreme Court is an issue of
survival for both our values and our democracy. I.W.Parkins, 070408 |
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THE SUPREME COURT AND THE JUDICIARY |
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Partisanship and Real Change
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Page 11 |
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JUDICIARY DANGEROUS? Opinion Column,
9/29/80, Mt. Pleasant, Michigan: Will
the judiciary always be, as Alexander Hamilton predicted in No. 78 of THE
FEDERALIST, the least dangerous branch of government? Hamilton came to
that conclusion on the basis that the judiciary has “no influence over either
the sword or the purse.” His evaluation has become part of the
conventional wisdom of our constitutional law. But is
it still accurate?
There have been, and are yet today, numerous controversies, both scholarly
and popular, over the power of our courts to invalidate acts of Congress and
the President. Historical studies have established, however, that decisions
of the U.S. Supreme Court, when they clashed sharply with prevailing public
opinion, were usually wiped out, either by constitutional amendment, by
changes in the court itself, or by some other means. Those studies may
tell us little, however, about the present and the future. What if the
court were to act in a more circumspect manner, and the public were not to
notice? Three developments are enhancing the power of
the judiciary, and invalidating Hamilton’s observations, without attracting
the attention of the American public.
The first such development is the growth and concentration of much of our
communication into a relative few large organizations, the mass media.
While the sword and the purse may have stood apart as prime instruments of
power in Hamilton’s day, the mass media must now be included. Might
they not, in some combination with the judiciary, greatly enhance the power
of that branch to do good or evil?
The second development is an obvious one, but its implications are no better
understood than are those of the mass media. We now have, as we did not
in Hamilton’s time, huge federal bureaucracy. The sword and the purse,
which were once controlled directly by Presidents and Congresses, are now
wielded, largely, at the discretion of nameless and faceless civil
servants. Some conditions of bureaucratic discretion are fixed by the
President and Congress, but such discretion is defined, also, in
interpretations of law made by the courts. Hence, our courts have
increasing influence over both the sword and the purse.
A third development concerning the power of the judicial branch has arisen
from state courts. Here, I refer to something which courts have always
done, but which recently have been exercising with novel vigor. It is the
power to reinterpret and apply rules defining tort liability. Actually,
such rules may have social implications as broad as those of statutes.
The threat of having to pay damages to another individual can be as severe a
limit upon one’s behavior as the presence of both a restrictive statute and a
policeman to enforce it.
Returning to the mass media, we may take some comfort in their apparent
coolness toward Chief Justice Burger. It seems plain that they liked
Earl Warren better. Still, a relationship in which the U.S. Supreme
Court applies the First Amendment as a guarantee of whatever privileges the
media seek and in which the media extend to the court their journalistic
support, could become a threat to American democracy.
There is no need to speculate regarding possibilities of an alliance between
the bureaucracy and the judiciary. Although they have been little
noticed outside the field of administrative law, several important changes of
federal policy can already be attributed to such cooperation.
Long ago, Congress enacted legislation restricting the horizontal
concentration of competing businesses into trusts or other combinations in
restraint trade. The extension of antitrust law to combinations of
supplier and customer, (e.g. Dupont and GM) and to
conglomerates of unrelated businesses (ITT and Hartford Insurance) was
accomplished by lawyers of the Antitrust Division of the Department of
Justice and justices of the U.S. Supreme Court.
Together, many years after enactment of the basic laws, they “discovered” in
them restrictions upon business which had never previously been thought to
exist there. Similarly, the Federal Power Commission’s authority over producer
pricing of natural gas, and authority of ICC to require railroads to
piggy-back trucks were created by the Supreme Court’s generosity in
interpreting the powers of bureaucrats—after Congress had ignored or rejected
requests for such powers.
The third recent development may be traced back to Benjamin Cardozo, who
became a national figure and U.S. Supreme Court Justice largely through his
innovation in “MacPherson vs. Buick Motor Co.” Most Americans today
would probably agree with Cardozo that manufacturers should be liable to the
ultimate consumer for defects in their products. Recently, however,
our courts have further increased the liability of manufacturers for injuries
suffered in the use of their products to the point that it is called
“absolute liability.” Even proof that the product in question was the
very best that it was possible to make with technology available is no
defense. And, only proof of the grossest misuse of the product will
nullify a consumer’s claim.
Increasing liability for torts is being imposed upon local governments as
well as upon private businesses and upon the professions. Apparently
(“Owen vs City of Independence, Mo.”), that liability includes situations of
which the responsible officials were not aware and violations of rights never
recognized in law before the claim. The cost of successful claims, and
of measures to settle or prevent claims, are born chiefly by consumers and
taxpayers, i.e. by the public.
The recent extensions of tort liability in America are not mere accidents or
evolutionary changes in the law. Reduction of legal emphasis upon the
responsibility of individuals for their own safety and upon proof of fault as
a basis for tort claims, i.e. socializing the risks of contemporary life, has
become a popular theme in law schools and law journals. Roger Traynor
as a professor of law of the University of California, an author of journal
articles, and then as a justice of his state’s supreme court, was one major
promoter of the change.
Except in the special area of automobile accident claims, the American public
has had little opportunity to consider questions of liability policy.
Spreading the risks of life through new rules of liability may be a desirable
public policy. According to John Hazard’s “Communists And Their Law,”
however, no-fault liability has not proven to be satisfactory in Russia,
where it was introduced following the revolution. The Soviet Union has
now reintroduced the concepts of individual responsibility and fault into
torts.
Whether or not the substance of our law should resemble that of the
Soviet Union is not the issue here. The issue is whether or not our
methods of making and changing law should reflect popular choices or only
those of an elite.
And Alexander Hamilton’s comments upon the judiciary have ceased to be
helpful. The nature and extent of judicial power have changed
sufficiently to warrant public concern for our Constitution.
One thing which ordinary Americans can do about this situation is to keep in
mind on Nov. 4, that he who wins the next presidential term, will probably
have several vacancies to fill on the U.S. Supreme Court. |
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©Ivan W. Parkins 2010, All articles, text, web pages property of
Ivan W. Parkins. Use of any material
requires permission of the author
and can be obtained by contacting,
info@americanpoliticalcommentary.com |