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About
Ivan W. Parkins: Dr.
Parkins is a retired professor of Political Science from Central Michigan
University. He received his PhD from
the University of Chicago and is a graduate of the United States Naval
Academy. Dr. Parkins served as a naval
officer during WWII aboard the battleship Alabama. He is a recent widower with three
daughters, 3 grand children and 2 great grand children. Dr. Parkins has written extensively, having
authored 3 books and a newspaper opinion column for many years. |
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Front Page |
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Inside This Issue
Front Page
Archive 2008
Archive2009 Page
2, Disassemble the House Page
3, Media Bias Page
4, Book Reviews Page
5, War and Their Costs Page
6, Broken Congress Page
7, Dividing America Page
8, Dividing America, Part two Page
9, Disinformation, Liberal Ideology COMMENTS |
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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, Tanney, 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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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. |