convention to maximize democracy
theater with a point: political institutions can be
adjusted so that government can be more or less
democratic--in a procedural sense
most Americans favor democracy, they would stop short of
- In the
sense of government being immediately responsive to
major opinion on all issues.
as there are tradeoffs between freedom and
are tradeoffs between maximized democracy and "good
government" -whatever that term might mean to
is merit in discussing "controlled" and "uncontrolled"
governmental system was never designed to maximize
majoritarian democracy, but it approaches the
maximization of pluralist democracy with two
elected house in a bicameral legislature
form of government
delegates to yesterday's constitutional convention quite
rightly proposed scrapping the Supreme Court, with its
current powers to declare an act of Congress
president and Congress were elected by the people, not
- One can
only defend the court's role in democratic theory in
terms of elite theory--a small, learned group knows
better than the majority of the people.
Democracy, limited government:, and judicial review
--the power of courts to nullify acts of
of limited government: there are some things that
government cannot do
on government power usually are viewed from the
standpoint of a few (the government) imposing repressive
measures on the many.
government also includes the case of the many (i.e., a
majority) imposing repressive measures on the
the case of the U.S. Census: Article I, Section 2,
and direct Taxes shall be apportioned among the several
States which may be included within this Union, according
to their respective Numbers, which shall be determined by
adding to the whole Number of free Persons, including
those bound to Service for a Term of Years, and excluding
Indians not taxed, three-fifths of all other Persons. The
actual Enumeration shall be made within three Years after
the first Meeting of the Congress of the United States,
and within every subsequent Term of ten Years, in such
Manner as they shall by Law direct.
subsequent decades, the practice of "Service for a Term
of Years" died out. "Indians not taxed" were those not
living in settled areas and paying taxes; by the 1940's,
all American Indians were considered to be taxed. The
Civil War of 1861-65 ended slavery (abolished legally
through the 13th Amendment in 1865), and the 14th
Amendment to the Constitution, ratified in 1868,
officially ended Article I's three-fifths rule. Thus, the
original census requirements were modified Direct
taxation based on the census never became practical
- Go to the
snack food for thought along with today's lecture, to see
what you think about this limitation on
Judicial Review and Limited
Constitutional basis of judicial power (Article
"The judicial power ... shall be vested in one Supreme
Court, and in such inferior courts" as the Congress shall
"the judicial power shall extend ..."
- to all
cases .. arising under this Constitution, the laws of
the U.S. and treaties made ... under their
- to all
cases affecting ambassadors and consuls
controversies involving the U.S.
court has ORIGINAL jurisdiction involving ambassadors
- It has
APPELLATE jurisdiction in all other cases.
controversial power of judicial review and the ascendancy
of the Supreme Court
REVIEW: the power to declare congressional acts
invalid because they violate the
power is not specifically stated in the
- It was
asserted by Chief Justice John Marshall in MARBURY v.
MADISON in 1803.
- But the
power of judicial review runs counter to democratic
theory: an unelected branch (the judiciary) checks an
elected branch (executive or legislature) in the name
of the Constitution.
The role of
an independent judiciary:
the power of government to infringe on freedom while
imposing order on society
example, the Bill of Rights protects persons,
opinions, and property against arbitrary government
specified in the Bill of Rights as guarantees against
action by the national government, which must
pass laws that Interfere with free
pass laws that restrict free exercise of
abridge freedom of press
restrict rights of citizens to bear
abridge freedom to assemble or petition
on government are needed to protect civil
difference between civil rights and civil
liberties involves restrictions on government in
the case of liberties and positive government action in
the case of rights.
are freedoms guaranteed to individuals and cannot be
denied by government.
are claims on social opportunities justified by
someone is denied social opportunities available to
others, that person is being denied his or her
civil rights are infringed by discriminatory acts
outside of government, and they are secured by
positive government action to end the
13th Amendment that abolished slavery involved the
government stepping in to end a social
14th Amendment made previouis slaves born in the
U.S. CITIZENS (members of the community) and both
prevented STATES from abridging citizens' civil
liberties under the Bill of Rights and from denying
citizens the equal protection of laws.
15th Amendment said that citizens shall not be
denied the right to vote based on race, color, or
previous condition of servitude.
laws and court decisions that promote civil
desegregation in schools.
public establishments to serve members of
affirmative action in hiring of minority groups
these examples REQUIRE government power--so civil
rights are associated with the use of government
- The Bill
of Rights sets limits to government action, even if
favored by a majority of the people
shall make no law respecting an establishment of
religion, or prohibiting the free exericse
abridging the freedom of speech, or of the
Amendment: "the right of the people to keep and bear
arms shall not be infringed"
- So the
Bill of Rights would be more accurately titled the Bill
much of its history, the Supreme Court has arbitrated over
rights and liberties.
- The role
of the courts in American government
courts shape policies that form the heart of American
the legislative function.
vexes democratic theory, which argues that the
exercise JUDICIAL RESTRAINT when they hew closely to
exercise JUDICIAL ACTIVISM when they interpret
existing laws broadly and interject their own values
in their decisions.
to an analysis by Neil Skene in CQ WEEKLY REPORT of
3/23/91, the court's power to interpret the constitution
was applied most forcefully during three eras in American
Under Chief Justice John Marshall, the court helped
define the federal system, most notably in Marbury v.
Madison but in a host of other cases.
35 years of the 20th Century, when the court struck
down social and economic legislation.
First under Earl Warren (1953-1969) and then under
Warren Burger (1969 1986), when the court aggressively
enforced the Bill of Rights against the states as well
as the federal government.
expansion of national power over the states occurred in
1937, when the Court buckled before President
Roosevelt was elected in 1932 with huge majorities in
Congress, he attacked the depression with a major
expansion of national powers.
passed a series of laws imposing national review of
example, in 1933 it passed the National Industrial
Recovery Act, which was designed to have industrial
and trade associations draw up fair competition
codes that were approved by the president and
enforceable by law.
- In a
series of decisions, the Supreme Court invalidated
the NIRA and other attempts to centralize power at
the national level on two grounds:
delegation of legislative power to the
of businesses wholly intrastate in
his reelection in 1936, Roosevelt sought to deal with
a hostile court by proposing a judicial reorganization
bill to add new judges for each one over 70, up to six
new judges for the Supreme Court.
brought fiery opposition from those who contended
that Roosevelt was undermining the independence of
Roosevelt's plan was defeated, the court switched
its position in a series of cases in 1937,
approving by 5-4 votes a series of cases that
stressed a very broad interpretation of Congress'
power to regulate activities that had "a close and
substantial relation to interstate commerce,"
recognizing its need to meet the challenge of an
referred to as the switch in time that saves
under Chief Justice Earl Warren and the so-called "Warren
Court" from 1953 to 1969, activist judges have tended to
prefer equality to freedom in their decisions.
links the idea of judicial activism with liberalism,
but there is no necessary connection.
- It is
equally plausible for activist judges to prefer
freedom to equality, making them conservative
the Burger Court, from 1969 to 1986, the court was
decided less activist, but still liberal.
Roe v. Wade decision in 1973 was decided by a 7-2
court declared unconstitutional a Texas law making
it a crime to obtain an abortion except for the
purpose of saving the mother's life.
Blackmun, who wrote the decision, could not point
to a specific constitutional guarantee to justify
the Court's ruling.
he based the decision on the right to privacy
protected by the due process clause of the 14th
the first 3 months, the abortion decision must be
left to the woman and her physician.
laws of 46 states were affected by the
William Rehnquist became Chief Justice in 1986 (producing
the Rehnquist Court), the court's composition had begun
to change as a result of new appointments.
feared that the Court became filled by Republican
presidential appointments who will produce
Justice Thurgood Marshall voluntarily retired from
the Court in 1991, the Court lost its most
dependable liberal justice.
battle over Clarence Thomas' confirmation to the
Court was that the President chose a conservative
black to replace Marshall.
liberal groups would have preferred a liberal white
to a conservative black,
many conservatives felt exactly the
liberals felt that if the court were to reconsider the
Roe v. Wade abortion case under the Rehnquist Court,
the decision would go against abortion rights.
that Byron White has announced his retirement,
Clinton will have the chance to appoint a liberal
justice who can help maintain the Roe v. Wade
Justices have not always behaved as they were
example, when Hugo Black was appointed to the
court by Roosevelt in 1937, critics objected to
his past affiliation with the KKK.
he proved himself to be a strong protector of
civil rights and civil liberties.
Felix Frankfurter, a jewish law professor, was
welcomed by liberals when he was appointed by
Roosevelt in 1939, but he became an opponent of
Hugo Black on issues of protecting
- Under the
Court of William Rehnquist (appointed in 1986) and the
intellectual leadership of Antonin Scalia (appointed the
same year), the court has entered a new era of deference
is left to states, to Congress, to the President, some
case of Nancy Cruzan, the young woman rendered
comatose in a car accident.
parents wanted her life support systems to be
terminated so she could die, but the Missouri
Courts said no.
appealed to the Supreme Court to find a right to
die in the language of the
the Rehnquist court was clearly sympathetic to
the concept, they deferred to the Missouri
court's objection that the parents ahd not
proved their daughter's wishes.
Cruzans later brought forth more evidence of her
wishes and she was allowed to die.
Warren Court probably would have established a
right to die under the Constitution.
case of Michael H(irschenshohn) who fathered a
daughter with Carole D., married to another, and
wanted visitation rights.
law clearly declared Carole's husband to be the
declared that the law, by denying him any chance
to prove his paternity, violated the
constitutional right to due process.
Supreme Court said that California could
establish such a law if it wanted
formed a lobbying group and got the legislature
to change the law.
- For the
last 40 years, the Republicans have wanted to limit
the role of the court.
roots of this position are inherently
conservative--but in a Burkean sense of using
established institutions to fulfill their
purpose of the legislature is to legislate, so
social change should be prescribed by the
should still to the role of deciding cases, and
if the courts see some inequities--they should
call on legislatures to change the
Rehnquist court reflects that view as it pushed
policy decisions back on legislatures, including
congress, which can deal with conflicting
Rehnquist court has refrained from dictating policy
outcomes of these cases shows that the result is
not necessarily conservative; it depends on the
action of the legislature.
values in the conservative position
conservative position, in favor of judicial restraint,
has clear democratic roots. based on the majoritarian
conception of democracy.
majoritarian view of democracy confines judging to the
letter of the law. The pluralist view of democracy
regards judging as simply another form of policymaking;
groups should simply find judges who favor their
novel controversies have been decided by the courts;
many new rights have been created in the name of the
Constitution. This role of the courts fits the
have acted as administrators or legislators as courts
force constitutional guarantees on representative
Court and public opinion
its undemocratic character, the Supreme Court is not
usually out-of-line with informed public opinion.
Americans are uninformed about the Court's
opinion polls reveal that the Court rarely departs
from majority sentiment.
decisions protecting minority rights had the
support of a growing minority and, sometimes, a
clear majority (e.g., end to segregated
Court also sidestepped many areas characterized by
highly negative public opinion (e.g., marijuana
power rests on LEGITIMACY: the belief that court
decisions are correct and proper. But legitimacy can be
questioned when judges are no longer viewed as making
"right" decisions but are viewed as making "political"
government can be frustrating; the framers made it so.
Courts are an alternative to representative institutions.
As long as courts are accessible to all substantial
claims, courts fit the pluralist model of