Judicial Review and Democratic Theory: Guardian Democracy Vs. Representative Democracy

Published date01 September 1987
Date01 September 1987
Subject MatterArticles
University of Delaware
scholarship of the past dozen years has been increas-
ingly dominated by a school of thought known variously as &dquo;extra-
textualist,&dquo; &dquo;non-interpretivist,&dquo; &dquo;supplementers&dquo; or &dquo;fundamental
rights jurisprudence. &dquo;1 The highly reputable scholars in this group differ
among themselves on a variety of constitutional law doctrines but they are
unified by their guiding normative principle concerning the role of the federal
judiciary in the American political system. They all agree that it is appropri-
ate for the Supreme Court to announce as &dquo;fundamental rights&dquo; particu-
lar rights that are implied nowhere in the constitutional document (neither
in a particular clause nor in the overall structure of the document), and
to strike down actions by elected government officials that conflict with these
&dquo;extra-textual&dquo; rights.
It is the point of view of this essay that the jurisprudence of these scho-
lars promotes the development of a political system distressingly similar
to the rule &dquo;by a bevy of Platonic Guardians&dquo; once condemned by Judge
Learned Hand (1958: 73).2 The purpose of this essay is to delineate in sys-
temic terms the political theory that appears to underly this jurisprudence,3
Received: March 5, 1986
1 st Revision Received: January 30, 1986
2nd Revision Received: October 7, 1986
Accepted for Publication: October 14, 1986
NOTE: Revised version of paper prepared for delivery at the American Political Science As-
sociation Annual Meeting, September 1985, New Orleans, LA.
Thomas Grey (1974 and 1978) coined the first two terms and then argued (1985) for replacing
them with the third. Paul Brest (1981) coined the fourth.

Paul Brest (1981: 1106) makes the telling point that the real aspiration may be to exercise
such rule, since a number of the most prominent judicial scholars once clerked at the
Supreme Court and dream of attaining seats there. This, however, cannot be the whole
explanation, because some of the scholarship to which I refer is produced by political
scientists, i.e., non-attorneys (e.g., Murphy 1978; 1980).
In fact this "fundamental rights" scholarship, as Brest (1981) calls it, or "natural law"
scholarship, as Carter (1985) somewhat misleadingly calls it, although now probably
the largest school of judicial criticism is perhaps not the fastest growing one. The "up
and coming" judicial scholarship seems to be the Critical Legal Studies movement. Since
many of the authors who link themselves to that movement seem to take a principled
delight in obscurity of expression (Carter 1985: 129, a generally sympathetic observer,
calls this their "playfulness"). Their views are difficult to assess. For some not particu-
larly atypical examples of this apparently deliberate obscurity, see Gabel and Kennedy
(1984); Tushnet (1984), "Conclusions," pp. 648-49); and John H. Schegel’s discus-
sion of Peter Gabel (1984: 402, n. 32). Nonetheless the views of these scholars deserve
analysis in the terms of this essay — i.e., in terms of their theory about the judicial
role within a democracy — for their influence is having quite an impact. Their main

and to contrast that political theory with the one that underlies the more
traditional jurisprudence of Marbury v. Madison4 and its doctrinal progeny.
The latter is termed variously &dquo;textualist, &dquo; &dquo;interpretivist, &dquo; or &dquo;preser-
vatist. &dquo;5 Overall, this essay is concerned with the normative question of
the role of the people (or of their elected representatives) in these two alter-
native theories of judicial review. Putting it most bluntly, to what degree
does the theory of judicial review proferred by those opposed groups of
scholars leave a place in our political system for &dquo;government by consent
of the governed&dquo;?
This analysis of the contrasting political theories is prefaced by an ef-
fort to show its needfulness. First, the claim that judicial history legitimates
unwritten-law-fundamental-rights jurisprudence is critically examined; next,
a counter-argument is presented to the effect that history per se provides
inadequate legitimation; and then an argument is developed that the choice
between extra-textualism and preservatist jurisprudence ultimately must
be made on the basis of competing political theories.
The examination of competing political theories presented here yields
the conclusion that the ethical norm often presented as orienting the moral
compass of the fundamental rights jurisprudes -
equal respect and con-
cern for all people -
is probably heeded more in the political theory of
the traditional jurisprudence of their opponents than in their own.

History as Empirical Fact
Two leading public law scholars, Thomas Grey (1974; 1978) and Walter
Murphy (1978) have produced highly influential accounts of the impor-
tance and especially the durability of an unwritten law tradition in the ex-
ercise of American judicial review. Their scholarship, which tends to support
the defense of unwritten rights by the contemporary Supreme Court, has
been significantly refined by Gary Jacobsohn. He has demonstrated per-
suasively (1984) that the natural justice rules believed to be judicially en-
forceable by the founding generation were limited to the minimal Lockean
influence is being felt at Harvard and Stanford Law Schools (see January 1984 issue
of Stanford Law Review for a reasonably broad sampling, and particularly the group bi-
ography by John H. Schlegel, p. 391). These are no small platforms from which to in-
fluence American public law. See also Ellen K. Coughlin’s essay in The Chronicle of Higher
Education (July 17, 1985), pp. 5-6, "The Crits v. The Legal Academy," for coverage
of the debate over the impact of CLS on legal education. For related discussions, al-
though not by self-proclaimed CLS members, see the 1982 (Vol. 60) Texas Law Review;
Carter (1985); see also Fiss-Brest dialogue in the 1982 (Vol. 34) Stanford Law Review.

1 Cranch 137 (1803).
Lief Carter (1985) coined this term (preservativist) to describe those scholars who accord
"binding authority to the text of the Constitution or the intentions of the adopters"
and who believe that "the only proper constitutional decision ... is significantly guided
by one or more of these sources." This essay defends the point of view that he labels
"discredited" (p. 41), but nonetheless employs his terminology. It is as good a term
as any, and much more manageable than Brest’s (1981) "critics of fundamental rights

principles of securing life, liberty, and property, and equality before the
law, against arbitrary governmental action;6 that the framers and early jurists
understood these minimal principles to have been embodied in the con-
stitutional text; that there was, thus, for them no conflict between a com-
mitment to positive constitutional law and to natural (moral or ethical) rights
(1981); and that this generation understood there to be a difference be-
tween the totality of &dquo;justice&dquo; or &dquo;good public policy,&dquo; on the one hand,
and minimal natural rights obligations, on the other hand. Jacobsohn (1984,
1985) has done an able job of providing the doctrinal context of early judi-
cial statements that influenced the work of Murphy and Grey. His expla-
nation has to a substantial degree repudiated the view that the natural rights
commitment of the framers sanctions the jurisprudence put forth by a num-
ber of modern scholars (e.g., Dworkin 1977, 1981; Murphy 1980; and
Richards 197 9)7 who would have the Court constitutionalize the norms of
currently fashionable moral philosophy (i.e., the teachings of John Rawls,
a prominent neo-Kantian, author of A Theory of Justice, 1971 ).8 (For addi-
tional discussion of the founding generation, see Goldstein 1986.)
J acobsohn’ analysis, however, cannot be sustained for the decades be-
yond those immediately following the Founding. First, slavery cases dur-
ing the antebellum period revealed all too nakedly the limits of this natural
rights cum positivism jurisprudence. It was one thing for justices to stretch
the constitutional text in favor of a natural right they wanted to find there,
such as a right against the legislative &dquo;devesting&dquo; of property. (Marshall
stretched the contracts clause to do it in Fletcher v. Peck, 9 and Dartmouth Col-
lege v. Woodward; 10 Story implied that the right was an inference from the
guarantee of a republican form of government. &dquo;) It was quite another for
justices to uphold as law what they knew to be indisputably within the sphere
of even the most minimal natural rights when they also knew it to be the
intent of the Constitution’s framers and ratifiers to deny those rights. Even
though the constitutional text was arguably unclear on the matter and even
though abolitionist, anti-slavery versions of the text were well-publicized
(Cover 1975, and Wiecek 1977, provide details), Justices Story and Mar-

These norms find expression in Art. 1, Section 9, clauses 2, 3, 4 and 8; Art. I, Section
10, clause 1; and Article 4, Section 4 (Guarantee Clause).
Ronald Dworkin does not explicitly endorse unwritten law jurisprudence. But he argues
(1981: 427) that those who do are really interpretivists who simply interpret the text

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