Tuesday, September 9, 2008

Book Review: Original Intent and the Framer's Constitution, Part II

In Part I of my analysis of Leonard Levy's Original Intent and the Framer's Constitution, I ended by discussing how historical evidence demonstrates that judges of all political stripes engage in judicial "activism." What follows from that truth, is this question: What then, if judges engage in activism and decide cases according to their personal political preferences, legitimates judicial review?

3. Judicial Review

The question of the Supreme Court's role in a democracy is controversial. When the Supreme Court hands down opinions that some of "the people" do not like you can pretty much cue the knee-jerk name-calling that starts with "judicial" and ends with "tyranny." These same critics, of course, are usually silent when the Supreme Court writes opinions that are agreeable even if these opinions are no less "activist," no less "tyrannical," or no less demonstrative of "legislation from the bench."

Levy asks, however, whether judicial review- the authority of the judicial branch to declare acts of Congress unconstitutional- was intended and answers the question by saying "history has not settled whether judicial review was originally intended" (100). Historical evidence indicates that the framers and ratifiers probably intended for the Supreme Court to be able to exercise review over state acts. Yet, the intent and authority for the US Supreme Court's power to review acts of the US Congress, is more questionable. There is scarce evidence either way as to whether such review was intended.

If there was no universal framer/ratifier intent, then, what legitimates the Supreme Court's power of judicial review over acts of Congress? As Levy writes, "long acquiescence by the people and their representatives has legitimated judicial review" (122). That is, the Supreme Court's power and authority exists because the people and the other branches let it exist. "Judicial review would have never flourished had the people been opposed to it. They had opposed only its exercise in particularly cases, but not the power itself. The people have the sovereign power to abolish it outright or hamstring it with constitutional amendments" (emphasis added, 123). Indeed.

For as much belly-aching about "judicial tyranny" that those in California have done with respect to that state's high court declaring anti-gay marriage laws unconstitutional, the entire marriage amendment process shows precisely how "the people" are capable, under our political system, of hamstringing a court. Constitutional amendments limiting marriage to one man and one woman have passed in many states throughout our nation. That these people have circumvented the judicial branch shows how the people truly are, no matter how misguided, sovereign. As I have written before, those who moan that "judicial tyrants" take away the voice of "the people" don't fully understand that it is precisely us, the people, who legitimate the court and who are capable of overturning judicial opinions through the constitutional amendment process. And rarely do these people see that it is not judicial review itself they are taking issue with, only its exercise in certain cases. Namely, the ones with outcomes that they do not like.

4. Final Thoughts

I'd like to end by re-iterating Levy's doubts about original intent as a theory of jurisprudence. For one, the Framers were not a monolithic, like-minded entity possessing the exact same opinions about different issues. That fact alone should make us leery of (BorkThomasScalia) those who base their legal arguments on "what the framers intended" as though they, magically perhaps, possess knowledge of some Universal Framer Intent that eludes the rest of us.

Secondly, while I do believe that the Constitution is valuable as a framework for making legal decisions, I also believe that trying to predict what the framers would have intended for our modern-day world is unpredictable and unsound. As Levy writes, "we live in a world of supersonic aircraft, recombinant DNA, robots, computers, microwaves, a global village economy, interplanetary exploration, and an interdependent world economy" (298-299). I don't care how conservative you are, it's nothing other than black magic to pretend that white elite powdered-wig-wearing men are capable of offering wisdom and insight, or even intended to do so, from their graves about today's concerns. "The text [of the Constitution]," Levy writes, "is what counts" but there is no evidence that the Framers "meant, wanted, or expected future generations to construe the Constitution as they, the Framers, had" (331).

The Constitution is vague on purpose. It was not meant to answer every conceivable social issue, but instead, develop gradually like the common law system. "The Constitution contains not one word about these or most of the subjects of considerable import with which the court must deal. That the Constitution is vague on purpose is another reason why we should be wary of constitutional amendments that take specific rights away from groups of people. Vagueness is a great strength of the Constitution, accounting in part for its longevity and vitality, because it allows for evolutionary adaptation to new needs" (353). I think, in fact, that it is quite arrogant that "marriage defenders" believe that their pet issue is an exception to this standard- as if it is so important that it necessitates its own explicit provision in our shared, yet abstract, Constitution.

I think these people have forgotten that the Constitution exists to protect individual rights. They misguidedly believe that they must save society by denying gay and lesbian individuals from marrying. Yet, as Levy writes:

"Those who measure individual rights against the rights of society forget that society has a profound stake in the rights of the individual; we possess rights as individuals not only because they inhere in us and serve to fulfill as individuals but because we function as a free society and maintain its openness by respecting personal differences.... Ours is so secure a system, precisely because it is free and dedicated to principles of justice, that it can afford to prefer the individual over the state" (392, 395).

In other words, the rights of "society" do not trump the rights of individuals. Perhaps these marriage defenders would better understand this concept if they were on the receiving end of an amendment specifically singling them out and excluding them from full participation in our legal system.

Lastly (admit it you knew I would bring this up) I was disappointed with this historian's refusal to explore the implications of systematically excluding women from the drafting, ratification, and ultimate acceptance of the Constitution. There were several openings for Levy to at least mention the exclusion of women from the political process, particularly in his discussions of individual rights and equality, yet he did not. Like so many historians undoubtedly do, perhaps Levy believes that the exclusion of women was inconsequential to the founding of our nation and, therefore, does not require questioning, mentioning, or analysis. Surely I am not the only person disappointed by those privileged assumptions.

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