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Against Judicial Activism

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Against Judicial Activism

Defending the Constitution from those who would rewrite it June 16, 2015
Photo by Willard/Thinkstock

The Constitution: An Introduction, by Michael Stokes Paulsen and Luke Paulsen (Basic Books 2015)

The meaning of the United States Constitution is “fixed by the original meaning of its words,” according to the authors of a highly engaging new book titled, simply, The Constitution: An Introduction. That proposition—music to the ears of originalists like Justice Antonin Scalia—underlies the book’s central theme: defending the Constitution’s text against those politicians and judges who “seek to rewrite [its] terms in the service of what are thought to be desirable policies.”

The Constitution is the product of a multi-year collaboration between Michael Stokes Paulsen, a professor of law at the University of St. Thomas, and his non-lawyer son, Luke. The book’s first half provides an overview of the Constitution’s key provisions and an introduction to the major schools of constitutional interpretation, including the authors’ own originalist perspective. The second half offers a condensed history of American constitutional law. With sidebars on many of the personalities who shaped constitutional doctrine—not just judges, but politicians and litigants, too—the book does an excellent job of placing legal controversies in historical context.

The Paulsens are at their best when critiquing the modern era of judicial activism. In their telling, the Warren Court (1953–69) produced “careless” decisions, because the justices were focused on achieving policy goals rather than upholding the law. The nadir of this results-oriented jurisprudence was, as the authors correctly point out, the Court’s 1973 decision in Roe v. Wade, which invented a federal right to abortion on demand. The authors assail Roe as “the most extreme example of judicial activism in the twentieth century.” They even compare the decision—unfavorably—to Dred Scott, the notorious pro-slavery decision that helped provoke the Civil War. “Not even Dred Scott,” they argue, “so completely seemed to disregard the text as Roe did.”

Rather than citing the Constitution’s actual language, the Roe Court relied on the doctrine of “substantive due process,” the idea that the Due Process Clause of the Fourteenth Amendment empowers judges to strike down laws that they consider flawed, even if not strictly unconstitutional. That doctrine had been strongly endorsed by the Court eight years earlier in Griswold v. Connecticut, in which Justice William O. Douglas famously discovered a constitutional right to privacy hidden in “penumbras, formed by emanations” of the First, Third, Fourth, Fifth, and Ninth Amendments.

Justices O’Connor, Kennedy, and Souter come in for heavy criticism from the authors for their less-than-courageous decision in Planned Parenthood v. Casey (1992) to reaffirm Roe “whether or not mistaken” for fear of provoking a political backlash. Rather than engaging in honest jurisprudence, the three justices were motivated by delusions of “fashioning a political compromise they thought should settle the abortion issue once and for all.”

The authors take aim at many other sacred cows of progressive jurisprudence. The famous police warnings mandated by Miranda v. Arizona (1966) reflected the Court’s “policy judgment” and not the text of the Fifth Amendment. The Court’s rejection of school prayer in Engel v. Vitale (1962) was based on a notion of the separation of church and state that is “found nowhere in the Constitution.” The Court’s 2013 decision striking down the Defense of Marriage Act was “cryptic and meandering in its reasoning.” Lawrence v. Texas (2003)—which struck down state anti-sodomy laws—is portrayed as an abrupt reversal of an earlier precedent (Bowers v. Hardwick) driven by certain justices’ desire to legislate from the bench. On affirmative action, the authors take a hard line: the plain meaning of the Equal Protection Clause of the Fourteenth Amendment “renders nearly all forms of state affirmative action programs illegal”—notwithstanding the Court’s continued tolerance of certain forms of affirmative action.

While The Constitution makes a compelling case against judicial activism, the book is not without its flaws. In order to arrive at its critique of the modern Supreme Court, the authors have crammed too much Supreme Court history into a simplified narrative in which “substantive due process”—the legal doctrine at the heart of activist decisions like Roe v. Wade—is the central villain. The authors assert, for example, that substantive due process was invented by Chief Justice Roger Taney in Dred Scott, but fail to acknowledge that Taney never used the term “substantive due process” and, in fact, made only a single fleeting reference to “due process” in the course of his 50-page opinion.

Turning to the years after the Civil War, the book faithfully describes the rise of substantive due process culminating in Lochner v. New York (1905), in which the Supreme Court struck down state business regulations, ostensibly for violating the “liberty” protected by the due process clause, but more likely because the justices simply thought the regulations unwise. The Paulsens, however, don’t merely criticize the so-called Lochner Era of cases; they label the entire period of 1876 to 1936 as one of constitutional “betrayal.” The years 1936–60, when the Court repudiated Lochner, is celebrated in a chapter called “Restoration.” But this is painting with too broad a brush. While the Lochner Era including some regrettable activist decisions, the pre-1936 Court was generally quite faithful to the Constitution’s overarching design of a limited federal government. In Hammer v. Dagenhart (1917), for example, the Court correctly struck down the federal Child Labor Act as beyond Congress’s enumerated powers. In order to stay within their narrative of “betrayal,” the authors condemn Hammer for “curbing the national government’s ability to address important social problems”—a criticism grounded more in policy than on constitutional interpretation.

The authors are left trying to shoehorn the Court’s New Deal decisions into a tale of constitutional “restoration.” Alas, this was the era in which the Court tore down the Constitution’s express limitations on federal power in order to clear the way for FDR’s massive increase in federal power. The most extreme New Deal decision, Wickard v. Filburn (1942)—which upheld the power of the federal government to dictate how much wheat a farmer could grow for his own use—is depicted as “restoring the broad interpretation of national legislative power” asserted by Chief Justice John Marshall in the early years of the Republic. But that’s an odd kind of restoration—rather than restoring the Constitution’s text, the Court was restoring the (already-overbroad) interpretations that Marshall had asserted and that later courts had rejected. In reality, the Court in Wickard did exactly what the Paulsens argue against: it rewrote the Constitution to further its desired policy goals.

In attacking the Court’s “rights revolution” of the 1960s and 1970s, the authors have to some extent accepted one of the basic premises of judicial activism: the idea that the Constitution is primarily about rights. It isn’t. The Constitution is a structural document—its purpose is to create a central government and simultaneously to limit that government’s scope. The document’s framers cared deeply about rights, but they believed that the best way to protect Americans’ rights was to limit the power of the federal government. The right to local self-government—ultimately enshrined in the Tenth Amendment—was the right that would safeguard all others. Though the Paulsens rightly identify federalism as one of the Constitution’s core themes in the book’s early chapters, they shy away from states’ rights throughout the historical narrative. They depict Jefferson’s doctrine of nullification, for example, as a tool that would be used to perpetuate slavery. In fact, the doctrine was invoked more often by abolitionists. With respect to the sovereign right of states to resist unconstitutional federal laws, the book claims that “the Civil War settled that issue once and for all”—an odd proposition for authors who insist that constitutional interpretation must be based on the text alone.

Happily, the authors are on much firmer ground when discussing separation of powers—the other essential structural feature of the Constitution. The Court’s decision in Hamdan v. Rumsfeld (2006), striking down the use of military tribunals to try captured al Qaeda war criminals was an “extraordinary” curtailment of executive power and one that President George W. Bush would probably have been justified ignoring entirely. The authors make the important point—one that continues to elude the mainstream media—that President Barack Obama has gone far beyond Bush in his assertion of unilateral executive power by claiming the right “to deploy offensive military force against other nations whenever he alone judged the use of force to be in the national interest, without any authorization by Congress” (emphasis in the original).

All in all, The Constitution is an excellent resource for non-lawyers and lawyers alike looking to understand the role of constitutional law in American history. Though the book would have benefited from a more nuanced narrative and a greater attention to structural issues, the Paulsens’ piercing attack on judicial activism is well worth the price of admission.

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