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-by Thomas C. Berg
Confronting the Court
The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth
-By William R. Casto
University of South Carolina Press
267 pp.; $49.95
The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt
-By William E. Leuchtenberg
Oxford University Press
350 pp.; $30, hardcover; $15.95, paper
Benchmarks: Great Constitutional Controversies in the Supreme Court
-Edited by Terry Eastland
181 pp.; $18
The Moral Tradition of American Constitutionalism: A Theological Interpretation
-By H. Jefferson Powell
Duke University Press
296 pp.; $39
We are under the Constitution, but the Constitution is what the judges say it is." So spoke Charles Evans Hughes, then governor of New York and soon to be a U.S. Supreme Court justice himself, in a 1908 address. For most students of our Court and Constitution, Hughes's pithy statement sums up the central problem of the Court's role in American government. The foundational structures and principles set forth in the Constitution limit the government even as they empower it. But who is to decide whether a particular government action transgresses the Constitution's limits?
Leaving that responsibility to the legislature or executive--the very agent, typically, whose action is in question--is like leaving the fox in charge of the chicken coop. For these and other reasons, the American political tradition from the outset has authorized the courts, especially the Supreme Court, to engage in "judicial review" of laws and invalidate those inconsistent with the Constitution.
The justices' insulation, through life tenure, from direct political pressure offers the hope that they will enunciate true constitutional principles regardless of immediate popular reaction. (It was the Court, and not Southern legislatures or the U.S. Congress, that finally declared state-enforced segregation inconsistent with the constitutional guarantee of equality.) But the same insulation also creates the risk that the justices will simply ...