To borrow a nicely turned phrase from the Supreme Court, "If there is any [other] fixed star in our constitutional constellation,"1 Page 2 it is the Court¥s dedicated use over the past seventy years of the presumption-of-constitutionality doctrine for judicial review. Under this standard of review, the great majority of government actions operate under a heavy presumption of validity and are almost always upheld, subject only to a challenger showing the action is unreasonable or arbitrary.2 Only in the exceptional case, where the government action affects a previously Court-identified liberty interest or suspect classification, will the presumption be reversed to impose the initial burden on the government to justify its action.
There are persuasive arguments that this is the correct approach, as it reflects a proper deference to the elected branches of government in a democratic society. It is the very nature of democracy to allow the people who will be affected by particular policies to have a voice in the enactment of those policies; and of the republican form of democracy to allow representatives, accountable to the people, to enact those policies. It is a valid question why a court, composed of unelected officials not directly accountable to the people (in federal courts, at least), should be allowed to nullify the actions of a voting majority. As Michael McConnell says, "the people through their representative institutions--not the courts--have authority to decide which course of action ¥does most credit to the nation.¥ . . . It is the right, Page 3 privilege, and obligation of the people to deliberate about such questions through their elected representatives."3
Alexander Bickel describes the task of devising the proper scope of judicial review as a "search . . . for a [judicial] function which differs from the legislative and executive functions; . . . whose discharge by the courts will not lower the quality of the other departments¥ performance by denuding them of the dignity and burden of their own responsibility."4 James Bradley Thayer¥s 1893 formula suggests courts generally should let stand the decisions of democratically elected legislatures and strike down only irrational laws:
[The court] can only disregard the [challenged] Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one,so clear that it is not open to rational question. That is the standard of duty to which the courts bring legislative Acts; that is the test which they apply,--not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it. This rule recognizes that, having regard to the great, complex, ever unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one Page 4 specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional.5
Thayer¥s views on judicial review have been enormously influential,6 providing foundations for the judicial philosophies of a number of prominent twentieth century jurists, including Justices Holmes, Brandeis, Frankfurter, and Judge Learned Hand.7 Judge Hand famously said, "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not";8 and that "[c]ourts ¥should not have the last word in those basic conflicts of "right and wrong,"¥ even in cases involving Bill of Rights guarantees. Such Page 5 constitutional rights must ¥serve merely as counsels of moderation.¥"9 To Hand, then, the Bill of Rights "are [merely] precatory, and their specific implementation and effect must depend on the people and their elected representatives."10
Such Thayerian-style countermajoritarian difficulty arguments have largely prevailed throughout most of the twentieth century since 1937, such that for decades the Court¥s presumption-of- constitutionality doctrine was virtually unchallenged among jurists and constitutional theorists, who, regardless of the interpretive method(s) employed, largely ceded the analytical high ground to the "government-first" position. As Rebecca Brown notes, "[e]ven the most sympathetic theorists tended to assume the role of apologist for judicial review . . . ."11
In recent decades, however, increasing numbers of scholars have begun questioning whether such a sympathetic reading of Thayer and the resulting presumption-of-constitutionality doctrine might not throw the original Liberty baby out with the countermajoritarian-difficulty bathwater. Lawrence Gene Sager points out, for example, that we misread Thayer¥s rule-of-clear- mistake if we assume legislative action defines the "outer boundary" of a constitutional norm. The judiciary may properly defer to a particular legislative act and yet reserve judgment on the full scope of protection offered by a particular constitutional provision. As Sager says,
[Thayer¥s] judicial restraint thesis has retained its vitality, and continues to be instrumental in the judicial enforcement of the Constitution, as the federal judicial enforcement of Page 6 the equal protection clause so clearly indicates. But, under the influence of a vigorous tradition of Supreme Court enforcement of constitutional norms, we have come to lose sight of the fact that some judicial decisions reflect the tradition of judicial restraint and should not be understood to be exhaustive statements of the meaning of the implicated constitutional norms.12
The heart of Thayer¥s argument is [merely] that the legislature is charged with the responsibility of measuring its own conduct against the Constitution and that the judiciary should therefore not lightly reach a judgment on the constitutionality of a legislative act contrary to the prior constitutional judgment of the legislature . . . .13
Archibald Cox offers a modern-day counterpoint to Judge Hand¥s extreme view, pointing out there is in fact good reason the Constitution subjects majoritarian democracy to judicial review:
[C]ourts will be a great deal firmer and wiser than legislatures in interpreting constitutional guarantees which protect essential liberty. First, judicial interpretation gives better protection to unpopular individuals and minorities shut out of or inadequately represented in the political process. It was the Supreme Court that spoke for the national conscience in Brown v. Board of Education, when Congress and the President remained silent. Similarly, judicial review provides better protection over time for enduring values which politicians too often neglect and of which the people too often lose sight in the emotional intensity and maneuvering of political conflict. Individual liberties such as freedom of speech and guarantees of privacy are often in this character.14
Rebecca Brown observes that majoritarian government exists, not for the sake of majoritarian government itself, but rather as a mechanism for protecting the people¥s Freedom: One of the genuinely unique aspects of the Constitution was its dependence on a principle of representation "¥where all authority flows from and returns at stated periods to, the people.¥ . . . All parts of the government were equally responsible but limited spokesmen for the people, who remained as the absolute and perpetual sovereign, distributing bits and pieces of power to their various agents. . . . The powers of the people were thus never alienated or surrendered to a legislature. . . ."
This unique structure of American government, then, does not divide all power amongst the branches. It divides all delegated power amongst the branches, always retaining the role of the people as an overseer of the entire system.15
Once this relationship is understood, it becomes apparent that "John Hart Ely¥s theory . . . lead[ing] to the conclusion that the Bill of Rights exists to support majoritarian government . . . had it exactly backwards. A better understanding of the system we have is that majoritarian government exists to support the Bill of Rights."16
Indeed, the founders and framers themselves were well aware of the perils of leaving the People¥s liberties to the whims of direct and elected majorities. James Madison, for example, arguing in support of passage of the Bill of Rights before the First Congress, said, "[I]ndependent tribunals of justice will consider themselves Page 8 in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive . . . ."17 In a letter to a French correspondent, Thomas Jefferson averred, "the laws of the land, administered by upright judges, . . . would protect you from any exercise of power unauthorized by the Constitution of the United States."18 Alexander Hamilton also commented in Federalist No. 78 that, as paraphrased by Rebecca Brown, "the judiciary was entrusted with the primary responsibility for guarding the value that underlay the entire constitutional structure: The courts were expected to commit to...