The Endless American Debate

• Author: Kent Roach
• Pages: 15-33

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15

The

Endless

American

Debate

To

understand

why

people

in

Canada

are

concerned about judicial

activism,

it is

essential

to

understand judicial activism

in the

United

States.

The

United States Supreme Court

has a

two-hundred-year histo-

ry of

enforcing

the

Bill

of

Rights,

and

this history dramatically demon-

strates

the

dangers

of

judicial

activism.

The

Court's ruling protecting

the

property rights

of

slaveholders

was

reversed

by a

constitutional amend-

ment

only

after

the

bloody Civil War.

The

Court's

decisions

striking

down

the New

Deal during

the

Great Depression

of the

1930s

forced

the

president

to

threaten

to

pack

the

Court with

six new

judges,

before

the

Court

itself backed

off

in

what

has

come

to be

known

as

"the switch

in

time that saved nine."

The

Court's

finest

hour

was its

1954 decision that

racially

segregated public schools were

unconstitutional,

but

that deci-

sion itself reversed

an

earlier

one

that "separate" could

be

"equal."

It

also

faced

massive resistance,

and

public schools remained segregated until

the

courts ordered busing,

a

very unpopular remedy.

The

Court's deci-

sions over

the

last

four

decades establishing detailed rules regulating

abortion

and

police powers, prohibiting school prayer,

and

allowing

flag

burning have also been unpopular,

but

generally impervious

to

change.

Even

a

short history

of the

United States Supreme Court should

shake

any

complacency about

the

possible dangers

of

judicial activism.

Those

on the

left

have bitterly complained

of

judicial activism that

struck

down government regulation,

and

those

on the

right have severe-

ly

criticized

the

Court's usurpation

of

democracy

on

many social issues.

Today,

the

United States Supreme Court

is

hounded

from

both sides

and

there

is

very little that Americans

can do

about

the

Court's decisions.

The

Fragility

of

American

Judicial

Review

The

framers

of the

American Constitution

did not

stipulate clearly

whether

federal

courts such

as the

Supreme Court should

be

able

to

enforce

the

constitution

against

the

federal and, especially,

the

state

governments. Alexander Hamilton,

one of the

leading architects

of the

1787

constitution,

was the

most inclined

to

give

the

independent judici-

ary

this power. Nevertheless,

in

response

to

many

who

opposed judicial

review

as an

almost monarchical power

—

something that

was

taken

16

PART

1:

WHAT

IS

JUDICIAL

ACTIVISM?

very

seriously

in the

wake

of the

American

Revolution

—

Hamilton

stressed

that

the

judiciary

was the

"least dangerous branch"

of

govern-

ment. Possessed with "neither

Force

nor

Will

but

merely

judgment,"

the

Court

"must ultimately depend upon

the aid of the

executive

arm

even

for

the

efficacy

of its

judgments." Hamilton also argued

that

the

ability

of

the

legislature

to

impeach judges would help

to

prevent "deliberate

usurpations

on the

authority

of the

legislature."1

The

United States

Supreme

Court

was on

precarious ground

from

the

start.

A

1793

Supreme

Court

decision requiring

a

state

to

defend

its

actions

in

federal

court

was

reversed

by a

1798

constitutional amend-

ment that

federal

courts could

not

entertain lawsuits brought against

states

by

citizens

of

other states

or

countries.

Well

into

the

twentieth

century, controversy continued about

the

extent

to

which

the

Bill

of

Rights

applied

to

state governments.

The

First Amendment,

for

example,

provides only that "Congress

shall

make

no

laws" abridging

freedom

of

speech, religion,

and

assembly.

The

battle

cry of the

rights

of the

states

to

govern themselves

free

of

federal

interference continues

to be an

important

feature

of

arguments

against

the

power

of the

federal

courts

to

enforce

the

Bill

of

Rights.

Many people oppose judicial activism

not

only because

the

judges

of the

Supreme Court

are

unelected

but

because they

are

part

of the

federal

government. When

the

Supreme

Court

intervened

in the

2000

presidential election, millions

of

Americans

saw it as

both judicial interference with democracy

and

fed-

eral interference with

the

states.

The

American origins

of

judicial review

are

found

in the

curious

case

ofMarbury

v.

Madison2

The

case

was

brought

by

Marbury,

who had

been given

a

patronage appointment

as a

justice

of the

peace

in the

dying days

of an old

administration.

The new

administration under

President Thomas

Jefferson

refused

to

make

the

appointment,

and

Marbury

went

to

court.

The

Supreme Court indicated that Marbury

was

entitled

to the

appointment,

but

decided that,

under

the

constitution,

it

did

not

have jurisdiction

to

force

the

president

to

make

the

appointment.

The

case

is now

famous

for the

Court's emphatic statements that

the

constitution

was the

supreme

law and "it is,

emphatically,

the

province

and

duty

of the

judicial department,

to say

what

the law

is."

This

argu-

ment

has

been

used again

and

again

by the

Court

to

justify

the

suprema-

cy of its

rulings

in the

face

of

opposition.

In the

actual case

of

Marbury

v.

Madison,

however,

it was

used

to

"reject

and

assume power

in the

same

breath"

and to

avoid

a

confrontation with

a new

Jefferson

admin-

istration that would likely

not

have obeyed

the

Court's order

to

make

good

on the

patronage appointment. President

Jefferson

was no

friend

of

the

Supreme

Court

and he

believed that

the

previous administration,