5 U.S.

AuthorSegall, Eric J.
Position1 Cranch - Marbury v. Madison - The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies

What an assignment! Select one moment from constitutional history, extinguish it from memory, and then describe all the consequences, desirable and not, that flow from the destruction of that legal moment. Talk about legal indeterminacy. Of course, Dred Scott would be high on my list, but that's too easy. There is a constitutional evil, however, that if eliminated would probably have led to a different result in Dred Scott and in many other questionable cases as well. Although I can identify that evil, isolating its specific cause is a more difficult task. I will, therefore, work backwards, first describing the problem and then discussing the legal moment that made it possible.

For most of its history, the Supreme Court has exercised what I will call strong judicial review. The Court has invalidated actions of the political branches and the states even in the absence of clear textual or historical support. Whether one agrees or disagrees that the Constitution prohibits prayer in school, affirmative action, campaign finance reform, hate speech regulations, undue interference with a woman's right to have an abortion, political patronage, the legislative veto, and federal commandeering of state governments (to name just a few modern examples), it is virtually impossible to argue that these decisions were based on unambiguous constitutional text or generally accepted historical accounts. Rather, these cases, like most of the Court's constitutional law cases, are based primarily on prior Supreme Court doctrine and the personal judgments or values of the Justices.

This strong or active model of judicial review can be contrasted with a weak one, under which judges would refuse to strike down a political decision absent an "irreconcilable variance" between that action and clear constitutional text or tradition.(1) A good faith application of the "irreconcilable variance" standard by judges would result in a deferential system of judicial review similar to the "rational basis" model the Court has used for ordinary economic legislation for the last sixty years.

The justification for deferential judicial review in a constitutional democracy is easy to articulate. The people agree to fundamental principles limiting future governments and assign the enforcement of those principles to independent political officials such as judges. Under this system, the judges act as agents for the drafters of the fundamental principles. Although there may be "dead hand" objections to such a system, there are also easily identifiable benefits, such as the strong sense of national unity that emerges from intergenerational agreement over shared...

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