To the Editor:
In “Triangulating the Constitution” [July-August], Gary Rosen is correct that the essence of the conservative position on judicial review is that “there is no more fundamental liberty than democratic self-government,” while liberals have long been defenders of judicial activism. It is odd, therefore, as he points out, to see recent books by liberal constitutional scholars Bruce Ackerman, Akhil Reed Amar, and Mark Tushnet proposing additional means of amending the Constitution and thereby restraining policy-making by judges. It is even odder, however, that a conservative like Mr. Rosen should berate them for doing so. We can be suspicious, but good ideas should not be rejected just because they come from liberals, who may be right, even if perhaps for the wrong reasons.
The difficulty of amending the Constitution under Article V (two-thirds vote of each House and ratification by three-quarters of the states) has made this means of political control of judicial policy-making more theoretical than real. We should, therefore, welcome proposals to make amendment easier so as to permit an effective political response to judicial activism. If it is true, as we claim, that here the people rule, Amar’s statement that “what the popular sovereign has made, it may ‘disestablish at will,’” should not be seen as shocking, but as a simple statement of fact. Only human will, not fate, can bind us to unworkable and harmful arrangements.
Mr. Rosen’s objection to Ackerman’s modest “Popular Sovereignty Initiative”—a second-term President may propose constitutional amendments that become effective if approved by Congress and by the electorate in two consecutive presidential elections—on the ground that it may result in enhanced federal power is mistaken for several reasons. First, he is not correct that it is “difficult . . . to find a warrant in the Constitution” for the great power the federal government currently exercises. The commerce clause, far from being a “seemingly narrow” provision, has proved sufficient to enable Congress to regulate virtually anything by the simple expedient of regulating the interstate movement of goods and people. The Constitution also gives Congress the power to tax “to provide for the general welfare,” which, aided by the Sixteenth Amendment, is also a grant of virtually unlimited power.
Second, it is unrealistic to expect the Supreme Court, an arm of the federal government, to serve as an effective means of limiting federal power. The primary cause of the increased nationalization of policy-making and the loss of state autonomy in recent decades has not been acts of Congress but Supreme Court usurpations of the policymaking power. It is the Court, not Congress, that has deprived the states of the power to restrict abortion, provide for prayer in schools, aid religious schools, limit the distribution of pornography, assign students to neighborhood schools, maintain an effective system of criminal procedure, prohibit flag-burning, and so on endlessly. Our overwhelming present need, in terms both of federalism and democracy, is protection from the Supreme Court—a committee of nine lawyers unelected and holding office for life, strongly tempted to self-aggrandizement, and making basic social-policy decisions for the nation as a whole—not protection by the Court from the people we elect to Congress.
Mr. Rosen is on target in his criticism of Amar’s argument for “incorporation” of the first eight amendments (meant to apply only to the federal government) into the Fourteenth Amendment so as to make them also applicable to the states. Amar’s proposal for amending the Constitution by national refer-enda, however, permitting a reassertion of the will of the people against the will of a majority of the Justices, is a move in the right direction. There may be reasons for opposing it, but the danger that it would weaken federalism, as Mr. Rosen argues, is not one of them.
Mark Tushnet, a self-declared Marxist and leader of the Critical Legal Studies school, is nonetheless an exceptionally able, independent, and original thinker, and his Taking the Constitution Away From the Courts is, Mr. Rosen notwithstanding, an extremely valuable contribution to the cause of limiting judicial power. Tushnet is deeply disaffected with the Court because it has not abolished economic inequality by enacting a redistributionist program, has disallowed some racial-preference programs, and has invalidated some “campaign-reform” measures. Because the Court can no longer be relied on to enact a Left-liberal agenda, he concludes that the country would be better off without judicial review. Conservatives as well as liberals, as Mr. Rosen illustrates, can be ambivalent about popular government—the Justices might some day, the dream is, enact conservative policies—but Tushnet, to his credit, has apparently seen the light.
Mr. Rosen concedes that abolishing judicial review “might give states and localities maneuvering room for a time”—something of an understatement—but he opposes it, incredibly, on the ground that “Congress would quickly take up the slack.” The abolition of judicial review, returning decision-making on basic social-policy issues to the people of each state, would be the single most important step we could take to return the country to political and social health. There is little reason to think that Congress would or could “take up the slack,” and if it did—by, for example, prohibiting prayer in the schools—we would have only ourselves to blame and, unlike under rule by judges, the means of correction in our hands at the next election.
Lino A. Graglia
University of Texas
School of Law
To the Editor:
Gary Rosen speaks of “the now-familiar shorthand” according to which “liberals stand for activism in constitutional matters, conservatives for restraint.” I would not deny that this is a fair approximation of conventional wisdom, but Mr. Rosen fails to appreciate to what extent it is an inadequate description of reality.
Thus, he asserts that liberals are emphatic that “democratic majorities must yield when their actions fly in the face of fundamental liberties.” By contrast, conservatives are said to hold that “there is no more fundamental liberty than democratic self-government, and judges who strike down its results should exercise extreme caution.” Recent Supreme Court practice—to say nothing of the animus of the pre-New Deal Supreme Court to legislation regulating economic activity—casts serious doubt on this dichotomy. For example, in the opinions of the Rehnquist Court striking down government affirmative-action programs and electoral redistricting plans motivated by a desire to enhance the prospects of minority-group candidates, I think Mr. Rosen will search largely in vain for any expression of regret that the will of legislative bodies is being forced to yield. Nor will he find any such expression in recent opinions of the Supreme Court that, in the name of federalism, have placed rather extraordinary limits upon efforts by congressional majorities to regulate the practices of state governments.
Further, in his discussion of the doctrine of “incorporation,” pursuant to which elements of the federal Bill of Rights have been made applicable to the actions of state governments, I believe that Mr. Rosen may have fostered a serious misapprehension. He writes that the notion that the “privileges or immunities” clause of the Fourteenth Amendment makes the Bill of Rights applicable to state governments “did not surface in a Supreme Court opinion—and a dissenting one, at that—until 1947.” He thus leaves the impression that the work of incorporation was undertaken by the liberal New Deal and Warren Courts. But this is false. The process of incorporating selected portions of the Bill of Rights was well on its way before Franklin Roosevelt’s Justices turned the Court in a liberal direction. Indeed, many of those rights that we consider most fundamental—the right to a fair trial plus the rights of free speech, freedom of the press, and the free exercise of religion contained in the First Amendment—were held applicable against state governments pursuant to the Fourteenth Amendment, if not specifically pursuant to the privileges or immunities clause, before Roosevelt’s influence upon the Court was felt.
Brennan Center for Justice
New York University
School of Law
New York City
Gary Rosen writes:
Lino A. Graglia is right to insist that good ideas should not be rejected just because they come from our ideological opposites. A useful corollary is that we should not accept bad ideas even when they are endorsed by our (usually) like-minded friends. On this occasion, unfortunately, Mr. Graglia shows himself to be in the grip of several very bad ideas.
The authors whose books I discussed would be deeply surprised to learn—from Mr. Graglia, of all people—that their proposals would not significantly expand the scope of national policymaking. That, after all, is the whole point of bypassing the Constitution’s arduous, federalism-based requirements for amendment. Whatever the differences among Bruce Ackerman, Akhil Reed Amar, and Mark Tushnet, all three wish to make it easier for a simple majority of the American people to declare its will on the great issues of the day, especially the constitutional questions now handled exclusively by the federal courts.
Mr. Graglia welcomes this prospect. As he sees it, national up-or-down votes on abortion, pornography, criminal procedure, and the like would be far preferable to the policy-making of activist judges, whose rulings in recent decades, he correctly points out, have run roughshod over the prerogatives long enjoyed by state and local governments. But the populist schemes supported by Mr. Graglia would hardly restore the status quo ante. Once invited to decide all manner of constitutional questions, national majorities—or their representatives in Washington—would be every bit as tempted as federal judges to ignore the demands of federalism, and with the same ill effects. As I wrote in my article, “the critical question is not how best to develop a national standard on a given issue but whether and to what degree a national standard should prevail in the first place.”
I share Mr. Graglia’s frustration with the shameless overreaching of the federal judiciary, but I do not think the solution lies in some sort of ongoing plebiscite on our constitutional arrangements, the ugly, polarizing consequences of which are not difficult to foresee. Say what one will about the Constitution’s admittedly cumbersome provisions for amendment, they do ensure that any change in our frame of government reflects a national consensus, not just the will of a passing national majority. Do we really want such fundamental matters decided in a less inclusive and deliberate way?
As for fixing the federal judiciary, I cannot think of a better remedy than appointing good judges and, as the necessary precondition for that, electing a President who knows what good judging consists of. This may lack the radical majoritarian appeal of inviting the American people to flex their sovereign muscles (or, for that matter, of encouraging Congress to believe that the commerce clause allows it to regulate “virtually anything”) but—unlike Lino Graglia—I am not eager to see our constitutional democracy transformed into a democracy pure and simple.
Mark Kozlowski takes me to task for not providing a complete discussion of how the Supreme Court came to incorporate the Bill of Rights against the states. But that would have taken me very far afield. I simply wished to make the point that Akhil Reed Amar’s novel argument for incorporation stands on exceedingly shaky historical legs.
As for instances of conservative judicial activism: yes, they exist, both in pre-New Deal Supreme Court rulings that struck down economic regulations and (arguably) in some of the present Court’s decisions on affirmative action. But all this pales next to the long list of usurpations by modern liberal activists, many of which are nicely catalogued by Mr. Graglia.