The Judiciary: Interpreter of the Constitution or Policymaker?
| Publication year | 1987 |
| Pages | 1557 |
| Citation | Vol. 09 No. 1987 Pg. 1557 |
1987, September, Pg. 1557. The Judiciary: Interpreter of the Constitution or Policymaker?
It is not inevitable that Americans approach their Constitution primarily through an examination of the work of the U.S. Supreme Court. All officials of both state and the national government take an oath to support and defend the Constitution, and there is little reason to assume that this is a meaningless gesture on their part. Schoolchildren and citizens at large are taught to venerate the great document. While most polls tend to show widespread ignorance about the Constitution, there is also evidence that Americans on the whole are satisfied to live under some kind of constitution, whatever its meaning.
In his recent book, The Machine that Would Go of Itself,(fn1) Michael Kammen, a gifted cultural historian, hoped to depict the broader role of the Constitution in American life and tried to convince us that we are over-stressing the role of the Supreme Court as the interpreter. At least for this reader, his valiant effort fails, for in spite of his effort to infuse a constitutional life into events outside the judiciary, his thorough study dredges up relatively little of substance. Examining the work of the judiciary is crucial to understanding the meaning of the Constitution.
Just as the learned and less learned quarrel over the correct reading of a religious text or the allusions in a play, lawyers and judges, members of the press and Congress, scholars and spokespersons for various causes have little difficulty in finding and denouncing "errors" in decisions of the U.S. Supreme Court. Our constitutional history reveals an apparently endless series of battles over the proper role of the Court. At times the Court is denounced for usurping powers that belong to Congress and the President. At other times, the Court is the villain in failing to protect the position of the states in our complex federal system. Increasingly in the modern era, the Court is found guilty of overzealously discovering and safeguarding claims, such as a "right to privacy," not specified in the Constitution against the legislatively expressed values of a popular majority. Libertarians, on and off the Court, however, argue that there has been a constriction of rights since the end of the Warren Court era.
Why has there been so much dissension during our 200 years of experience under the Constitution? Without attempting an exhaustive listing, several factors may help to explain this. First, the Constitution creates an extremely complex system of institutions, powers and procedures. In their attack on the proposed Constitution, several anti-Federalist writers questioned the need for such a complex system.(fn2) They preferred a simpler system, one more easily understood by the average voter and more readily controlled by the people. Second, the Constitution represented the triumph of compromise, as would any agreement that had to appeal to people of diverse national and cultural backgrounds and interests.
Sectional and economic rivalries and the diversity of religions and ways of life posed difficult problems for advocates of a new government united primarily by dissatisfaction with government under the Articles of Confederation. Thus, details
To fill a gap in the existing system of government under the Articles of Confederation, a single executive was proposed in Article II. In contrast to the careful listing in Article I of the powers of Congress, however, Article II uses general terms in outlining the roles of the executive. Moreover, if the Constitution was to have the status of "fundamental law" as foreseen by Hamilton and by the Supreme Court, speaking through Chief Justice Marshall,(fn4) then the key provisions of the Constitution would have to provide the occasion for lawsuits whenever one or more individuals could claim injury as the result of government action. No matter what the possible intent of the framers was with respect to the numerous constitutional claims that were to arise (and on most, they really had no specific intent), it was left to the courts and ultimately the U.S. Supreme Court to determine the limits of governmental power and the scope of individual rights.
It is commonplace for Americans to think the Court under Marshall broke wholly new ground with respect to the power of the Supreme Court. However, a predecessor court, in Hylton v. United States,(fn5) made it clear that determination of the constitutionality of an act of Congress was a necessary part of the Court's exercise of Article III "judicial powers." Moreover, in holding that a state could be sued by an out-of-state creditor in Chisholm v. Georgia,(fn6) the Court showed its willingness to take an unpopular position. This case led to the adoption of the Eleventh Amendment, forbidding such suits in the future.
The debates of the Constitutional Convention remained unpublished for half a century, until the death of the last member when the promise of secrecy was at an end.(fn7) Chief Justice Marshall and his court thus enjoyed the advantage or disadvantage, depending on one's view of the Court's role, of interpreting the Constitution without the guidance or restriction of evidence of original intent. Although the justices were contemporaries of the men who framed the document, how restrictive can general sentiments or understandings be? Three examples may show just how much leeway, at least in...
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