American Government and Politics
Spring, 2000

Kenneth Janda, Instructor

Week 3, Lecture 2

Judicial Review and Limited Government

Yesterday's convention to maximize democracy
  • Political theater with a point: political institutions can be adjusted so that government can be more or less democratic--in a procedural sense
  • Although most Americans favor democracy, they would stop short of maximizing democracy
    • In the sense of government being immediately responsive to major opinion on all issues.
      • Just as there are tradeoffs between freedom and equality,
      • there are tradeoffs between maximized democracy and "good government" -whatever that term might mean to you.
    • There is merit in discussing "controlled" and "uncontrolled" democracy.
  • Our governmental system was never designed to maximize majoritarian democracy, but it approaches the maximization of pluralist democracy with two principles:
    • Separation of powers
    • Checks and balances
  • Institutional manifestations
    • Separately elected house in a bicameral legislature
    • Separately elected president
    • Independent Supreme Court
    • Federal form of government
  • Radical delegates to yesterday's constitutional convention quite rightly proposed scrapping the Supreme Court, with its current powers to declare an act of Congress unconstitutional.
    • The president and Congress were elected by the people, not the court.
    • 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.
    Today's Lecture:
    Democracy, limited government:, and judicial review
    --the power of courts to nullify acts of legislatures.

    The meaning of limited government: there are some things that government cannot do

    Restrictions on government power usually are viewed from the standpoint of a few (the government) imposing repressive measures on the many.

    But limited government also includes the case of the many (i.e., a majority) imposing repressive measures on the few

    Consider the case of the U.S. Census: Article I, Section 2, states: 

    Representatives 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.

     In 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 government.

Judicial Review and Limited Government

The Constitutional basis of judicial power (Article III)

  • STRUCTURE: "The judicial power ... shall be vested in one Supreme Court, and in such inferior courts" as the Congress shall prescribe.
  • JURISDICTION: "the judicial power shall extend ..."
    • to all cases .. arising under this Constitution, the laws of the U.S. and treaties made ... under their authority
    • to all cases affecting ambassadors and consuls
    • to controversies involving the U.S.
    • The court has ORIGINAL jurisdiction involving ambassadors or states
    • It has APPELLATE jurisdiction in all other cases.
  • The controversial power of judicial review and the ascendancy of the Supreme Court
    • JUDICIAL REVIEW: the power to declare congressional acts invalid because they violate the Constitution.
    • This power is not specifically stated in the Constitution
    • 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:

  • Checking the power of government to infringe on freedom while imposing order on society
    • For example, the Bill of Rights protects persons, opinions, and property against arbitrary government INTERFERENCE.
    • Originally specified in the Bill of Rights as guarantees against action by the national government, which must
      • Not pass laws that Interfere with free speech
      • Not pass laws that restrict free exercise of religion
      • Not abridge freedom of press
      • Not restrict rights of citizens to bear arms.
      • Not abridge freedom to assemble or petition government
    • Restraints on government are needed to protect civil liberties
  • The 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.
    • Liberties are freedoms guaranteed to individuals and cannot be denied by government.
    • Rights are claims on social opportunities justified by community membership.
      • When someone is denied social opportunities available to others, that person is being denied his or her civil rights.
      • Usually civil rights are infringed by discriminatory acts outside of government, and they are secured by positive government action to end the discrimination.
      • The 13th Amendment that abolished slavery involved the government stepping in to end a social practice.
      • The 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.
      • The 15th Amendment said that citizens shall not be denied the right to vote based on race, color, or previous condition of servitude.
      • National laws and court decisions that promote civil rights:
        • Ending desegregation in schools.
        • Forcing public establishments to serve members of minority groups.
        • Promoting affirmative action in hiring of minority groups and women.
      • All these examples REQUIRE government power--so civil rights are associated with the use of government power.
  • The Bill of Rights sets limits to government action, even if favored by a majority of the people
    • First Amendment freedoms
      • "Congress shall make no law respecting an establishment of religion, or prohibiting the free exericse thereof"
      • "or abridging the freedom of speech, or of the press"
    • Second 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 of Liberties

Through much of its history, the Supreme Court has arbitrated over rights and liberties.

  • The role of the courts in American government
    • American courts shape policies that form the heart of American democracy.
      • Interpreting congressional statutes.
      • Interpreting the Constitution.
      • Usurping the legislative function.
      • This vexes democratic theory, which argues that the majority rules.
    • Judges exercise JUDICIAL RESTRAINT when they hew closely to previous decisions.
    • Judges exercise JUDICIAL ACTIVISM when they interpret existing laws broadly and interject their own values in their decisions.
  • According 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 history:
    • 1801-1835: 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.
    • First 35 years of the 20th Century, when the court struck down social and economic legislation.
    • 1953-1986: 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.
  • The expansion of national power over the states occurred in 1937, when the Court buckled before President Roosevelt.
    • When Roosevelt was elected in 1932 with huge majorities in Congress, he attacked the depression with a major expansion of national powers.
      • Congress passed a series of laws imposing national review of economic activities
      • For 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:
        • excessive delegation of legislative power to the president
        • regulation of businesses wholly intrastate in character
    • After 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.
      • This brought fiery opposition from those who contended that Roosevelt was undermining the independence of the judiciary.
      • Although 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 industrial society.
      • Sometimes referred to as the switch in time that saves nine.
  • Clearly 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.
    • This 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 activists.
    • During the Burger Court, from 1969 to 1986, the court was decided less activist, but still liberal.
      • The Roe v. Wade decision in 1973 was decided by a 7-2 vote.
      • The court declared unconstitutional a Texas law making it a crime to obtain an abortion except for the purpose of saving the mother's life.
      • Harry Blackmun, who wrote the decision, could not point to a specific constitutional guarantee to justify the Court's ruling.
      • Instead, he based the decision on the right to privacy protected by the due process clause of the 14th Amendman.
      • During the first 3 months, the abortion decision must be left to the woman and her physician.
      • The laws of 46 states were affected by the decision.
  • When 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.
    • Liberals feared that the Court became filled by Republican presidential appointments who will produce conservative decisions
      • When Justice Thurgood Marshall voluntarily retired from the Court in 1991, the Court lost its most dependable liberal justice.
      • The battle over Clarence Thomas' confirmation to the Court was that the President chose a conservative black to replace Marshall.
      • Many liberal groups would have preferred a liberal white to a conservative black,
      • while many conservatives felt exactly the opposite
    • Most 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.
      • Now 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 decision.
      • However, Justices have not always behaved as they were expected.
        • For example, when Hugo Black was appointed to the court by Roosevelt in 1937, critics objected to his past affiliation with the KKK.
        • However, he proved himself to be a strong protector of civil rights and civil liberties.
        • Conversely, 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 minorities.
  • 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 and restraint.
    • Policy-making is left to states, to Congress, to the President, some examples.
      • The case of Nancy Cruzan, the young woman rendered comatose in a car accident.
        • Her parents wanted her life support systems to be terminated so she could die, but the Missouri Courts said no.
        • They appealed to the Supreme Court to find a right to die in the language of the constitution.
        • Although 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.
        • The Cruzans later brought forth more evidence of her wishes and she was allowed to die.
        • The Warren Court probably would have established a right to die under the Constitution.
      • The case of Michael H(irschenshohn) who fathered a daughter with Carole D., married to another, and wanted visitation rights.
        • California law clearly declared Carole's husband to be the father.
        • He declared that the law, by denying him any chance to prove his paternity, violated the constitutional right to due process.
        • The Supreme Court said that California could establish such a law if it wanted to.
        • He 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.
      • The roots of this position are inherently conservative--but in a Burkean sense of using established institutions to fulfill their purpose.
        • The purpose of the legislature is to legislate, so social change should be prescribed by the legislature.
        • Courts should still to the role of deciding cases, and if the courts see some inequities--they should call on legislatures to change the law.
      • The Rehnquist court reflects that view as it pushed policy decisions back on legislatures, including congress, which can deal with conflicting interests.
      • The Rehnquist court has refrained from dictating policy results.
      • The outcomes of these cases shows that the result is not necessarily conservative; it depends on the action of the legislature.

Political values in the conservative position

  • The conservative position, in favor of judicial restraint, has clear democratic roots. based on the majoritarian conception of democracy.
  • The 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 cause.
    • Many 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 pluralist model.
    • Judges have acted as administrators or legislators as courts force constitutional guarantees on representative institutions.

The Supreme Court and public opinion

  • Despite its undemocratic character, the Supreme Court is not usually out-of-line with informed public opinion.
    • Most Americans are uninformed about the Court's work.
    • Public opinion polls reveal that the Court rarely departs from majority sentiment.
      • Court decisions protecting minority rights had the support of a growing minority and, sometimes, a clear majority (e.g., end to segregated schools).
      • The Court also sidestepped many areas characterized by highly negative public opinion (e.g., marijuana use).
  • Judicial 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" decisions.
  • Representative 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 democracy.