Constitutionalism, Executive Power, and the Spirit of Moderation

Murray P. Dry and the Nexus of Liberal Education and Politics

Giorgi Areshidze, Paul O. Carrese, Suzanna Sherry, Giorgi Areshidze, Paul O. Carrese, Suzanna Sherry

• Publisher: SUNY Press
• Year: 2016
• Print ISBN: 9781438460420, 9781438460413
• eBook ISBN: 9781438460437
• Topic: Politics & International Relations
• Subtopic: Public Law
• Index: Politics & International Relations

In Constitutionalism, Executive Power, and the Spirit of Moderation, contributors ranging from scholars to practitioners in the federal executive and judicial branches blend philosophical and political modes of analysis to examine a variety of constitutional, legal, and philosophical topics. Part 1, "The Role of Courts in Constitutional Democracy, " analyzes the proper functions and limits of the judiciary and judicial decision making in constitutional government. Part 2, "Law and Executive Authority, " reflects on the tensions between constitutionalism and presidential leadership in both domestic and international arenas. Part 3, "Liberal Education, Constitutionalism, and Philosophic Moderation, " shifts the focus to the relationship between constitutionalism and political philosophy, and especially to the modern modes of philosophy that most directly influenced the American Founders. A valuable resource for specialists, the book also will be of use in political science and law school classes.

Part I

The Role of Courts in Constitutional Democracy

Chapter 1

Why We Need More Judicial Activism

Suzanna Sherry

Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to what the drafters of the Constitution called “the excess of democracy” is judicial review: unelected, life-tenured federal judges with power to invalidate the actions of the more democratic branches of government. Lately, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. Taking the Constitution away from the courts—and giving it back to the people—has become a rallying cry. But those who criticize the courts on this ground misunderstand the proper role of the judiciary. The courts should stand in the way of democratic majorities, in order to keep majority rule from degenerating into majority tyranny. In doing so, the courts are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few.

In this chapter, I begin by defining two slippery and often misused concepts, judicial review and judicial activism, and briefly survey the recent attacks on judicial activism. I turn then to supporting my claim that we need more judicial activism, resting my argument on three grounds. First, constitutional theory suggests a need for judicial oversight of the popular branches. Second, our own constitutional history confirms that the founding generation—the drafters of our Constitution—saw a need for a strong bulwark against majority tyranny. Finally, an examination of constitutional practice shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one.

The Judiciary and its Critics

Judicial review, despite some claims to the contrary, is not judicial supremacy. Courts are the final arbiter of the Constitution only to the extent that they hold a law unconstitutional, and even then only because they act last in time, not because their will is supreme. The branches are co-equal when it comes to constitutional interpretation, but all three branches must agree that a law (or other government action) is constitutionally permissible for it to be valid. If Congress believes that a proposed law is unconstitutional it will choose not to enact that law, and no other branch can override Congress’s decision. If the president believes that a proposed law is unconstitutional he will veto it, and his view can be overridden only with difficulty (and only by the legislative branch). Judicial review simply ensures that the judiciary has the same opportunity as the other two branches to prevent the government from acting unconstitutionally. Moreover, if the Supreme Court finds something to be constitutional, that holding is not binding on the other branches, as the history of the Bank of the United States shows: despite the Court’s unequivocal holding in McCulloch v. Maryland that the bank was constitutional, the popular branches continued to spar over the question, and ultimately the bank’s charter was discontinued.1

Indeed, throughout most of American history, judicial review of federal statutes was uncontroversial. Marbury v. Madison was not novel, and generated virtually no opposition to its invocation of the Court’s power to invalidate federal statutes (its substantive holdings are a different story). Historically, the only major dispute about judicial review was a debate about federalism rather than separation of powers. Few objected to federal judges reviewing the constitutionality of federal statutes, or state judges reviewing the constitutionality of state statutes. But federal judges reviewing the constitutionality of state statutes? That was a problem. It was, however, merely one aspect of the larger issue of federal power in general; objections to federal judicial interference with state prerogatives were no louder than objections to federal legislative or executive interference with state prerogatives. From Martin v. Hunter’s Lessee through John Calhoun’s interposition and nullification theories to the Civil War, some states periodically resisted all federal claims of supremacy. Their constitutional theory—essentially one of polycentric constitutionalism—was never very attractive, and it was definitively rejected with the defeat of the Confederacy and the enactment of the Reconstruction Amendments to the Constitution.2

Ultimately, judicial review of state actions serves the same purpose as judicial review of federal actions. It ensures that when a state act is challenged, it is not upheld as valid unless at least one branch of the federal government agrees that it is constitutional. We could have designed a system granting that review power to the federal executive or legislature, but by and large we did not. James Madison actually proposed a congressional veto on state laws, but it was overwhelmingly rejected.3 Congress has power to preempt state laws by enacting its own statutes, but cannot simply declare a state law unconstitutional. And no one ever seems to have thought that letting the federal executive veto state laws was a good idea.

If judicial review simply allows the courts to participate on an equal footing with the other branches and the states, what is judicial activism? Most accusations of judicial activism can be reduced to a charge that the judiciary has invalidated a statute that the accuser favors. Conservatives bemoan Roe v. Wade as judicial activism, and liberals hurl the same charge at Citizens United v. FCC. Both sides claim to be limiting their criticism to invalidations that depend on erroneous interpretations of the Constitution, but there is no agreement on what constitutes a good or bad interpretation—or even on the validity of different interpretive methods. If the characterization of a decision as activist depends on the politics of the person doing the characterizing, “judicial activism” is a merely meaningless pejorative.4

To avoid this trap, we need a definition of judicial activism with no political valence. It should include the acts of a conservative court striking liberal legislation as well as a liberal court striking conservative legislation. It should not embroil us in an argument over whether the court has properly or improperly interpreted the Constitution. It must, in other words, be objective.

Luckily, it is easy to describe judicial activism in objective terms. Judicial activism occurs any time the judiciary strikes down an action of the popular branches, whether state or federal, legislative or executive. Judicial review, in other words, produces one of two possible results: if the court invalidates the government action it is reviewing, then it is being activist; if it upholds the action, it is not. This definition also has the advantage of recognizing the counter-majoritarian aspect of judicial invalidations as the core distinguishing feature of activism.

Judicial activism, as so defined, is still subject to two different sorts of critiques. First, we can still argue about whether any particular invalidation, or any particular interpretation of the Constitution, is correct. But that requires us to delve into substance rather than simply resorting to name-calling: the problem is not the “activism” but rather the decision itself. The disputes are thus about the correctness of the court’s decision, not—as is the case with charges of “activism”—about its legitimacy. I would welcome such a change in the tenor of debates about the Supreme Court, but it is beyond the scope of this chapter.

The second possible critique is that activism, as I define it, is a bad thing and should be rare. The argument rests on a basic majoritarian premise: in a democracy, the wishes of the majority should generally prevail. We can charitably describe the current attacks on judicial review and judicial activism as making this type of critique.5 But criticism of judicial activism—in theory and for the Supreme Court’s modern critics—does not necessarily entail criticism of judicial review. Truly unconstitutional statutes should be invalid. T...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Foreword
• Acknowledgments
• Introduction: Liberal Education and Politics
• Part I: The Role of Courts in Constitutional Democracy
• Part II: Law and Executive Authority
• Part III: Liberal Education, Constitutionalism, and Philosophic Moderation
• Publications by Murray P. Dry
• Constitutionalism, Executive Power, and the Spirit of Moderation
• Contributors
• Index
• Back Cover