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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 enact their own policy preferences, leaving the citizenry no easy means of correction. (Amending the Constitution is very difficult, and consider how opponents of abortion rights have failed to get them reversed even after several Court appointments by "pro-life" presidents.)

The risk of judicial subjectivity is increased because many key constitutional phrases ("due process of law," "freedom of speech," "cruel and unusual punishment") are open-ended, unclear in their application to current problems. Is the Constitution then simply "what the judges say it is"?

These issues have become particularly pressing in American legal culture. But for Christians, there will always be another, more fundamental question: How should one think theologically about the role of the Court and respond theologically to its actions? A quartet of recent studies on the Court and the Constitution (historical, jurisprudential, and theological) offer an occasion to touch on these questions.

Judicial Review, Natural Law, And The Early Court

The institution of judicial review as a regular feature of government was an American innovation. In the eighteenth century, as now, the predominant practice of English government was one of legislative supremacy: the common law of contracts, property, and torts was overseen by judges, but when Parliament legislated, it did so for the most part, in Sir William Blackstone's words, "absolutely and without controul."

In contrast, the American revolutionaries, smarting under Parliament's perceived excesses, appropriated a tradition of the English opposition that held that even legislative acts would be voided if contrary to natural law, or "common right and reason." The Americans, however, took the distinctive step of translating such fundamental principles into a written constitution, which the people could approve in a specific act. Thus the primary justification offered for judicial review under the new federal Constitution was not natural law, but popular sovereignty. As Alexander Hamilton argued in the Federalist Papers and John Marshall ruled in the landmark Marbury v. Madison (1803), judges could disregard a law enacted by the people's representatives if, but only if, it conflicted with the people's own higher declaration of law in the Constitution.

In fact, however, the relationships among judicial review, natural law, and common law were quite complex, as William Casto emphasizes in a fine account of the 1789-1801 Court, The Supreme Court in the Early Republic. Although this period is often overshadowed by the subsequent Marshall Court, Casto searches it carefully and finds themes crucial to understanding judicial review today.

A 1798 case, Calder v. Bull, kicked off judicial debate over the role of moral philosophy or natural law in constitutional interpretation. In an otherwise garden-variety opinion interpreting the express constitutional prohibition on "ex post facto" (or retroactive) laws, Justice Samuel Chase provoked dispute by claiming that even if a state's "authority should not be expressly restrained by the constitution," the state would still be forbidden to violate "general principles of law and reason"--for example, by passing "a law that takes property from A and gives it to B." In rejoinder, Justice James Iredell denied that judges could invalidate a law "merely because it is, in their judgment, contrary to the principles of natural justice." "The ideas of natural justice are regulated by no fixed standard," Iredell said, while the very purpose of a written constitution was to put "marked and settled boundaries" on legislative power.

Iredell's opinion was an ancestor of theories of constitutional interpretation that limit judges to considering the text and original meaning of a provision. Did Chase's opinion, on the other hand, assert (as Iredell and later critics charged) that the justices are virtual Platonic guardians, free to ignore the text and history and invalidate legislation on the basis of morality and natural law? No, says Casto; relying on Chase's own writings strongly affirming popular sovereignty, he argues that Chase meant only that "natural-law principles might be consulted in seeking the meaning of the Constitutions that the people had approved."

Simply demanding a textual "peg" on which to hang natural-law reasoning, however, does not really reduce the risk of judicial subjectivity, since many constitutional phrases are so broad as to bear a variety of (conflicting) moral theories. (At various times in our history, for example, the "due process of law" clauses have been read to protect the rights to own slaves, to run a business free from regulation, and to have an abortion.) But as Casto points out, eighteenth-century judges internalized a further constraint on their decision-making: legal reasoning was bound up in the common-law tradition, which changed very slowly and was resistant to broad or explicit moral theories. As long as there was a coherent professional community of (mostly elite) lawyers, the judges in practice would be guided by its interpretive norms.

The first moral issue in America to rend that community (and the whole nation) was slavery. The Supreme Court's disastrous pro-slavery decision in the Dred Scott case (1857)--which deprived millions of African Americans of full humanity, hastened the onset of the Civil War and destroyed the Court's standing in the North for years--dramatizes the dangers of the justices venturing far into moral theory without either express textual support or a broad social consensus. The framers had deflected the problem of slavery by assuming the institution's existence but refraining from explicitly giving it full or permanent protection. The Court thus turned to the open-ended concept of "due process," holding that slaves were "property" that the government could not deprive a slaveholder of when he moved into a territory.

Liberty Of Contract: The Laissez-faire Court

The second time that the Court used the "due process" concept to enact a controversial moral theory likewise precipitated a crisis. As nineteenth-century industrialization prompted increased government regulation, the Court responded with a campaign to protect the laissez-faire economy on two constitutional fronts.

Federal laws regulating wages, hours, and working conditions fell because, the Court said, Congress's power to regulate interstate "commerce" did not extend to regulating "manufacturing." But the Court invalidated even state legislation, most notably a maximum-hours law for bakers in Lochner v. New York (1905), on the ground that both workers and employers had a fundamental "liberty to contract" with each other on whatever terms they pleased, and state interference with these bargains was a denial of "due process."

Matters came to a head in 1936 in a constitutional showdown elegantly recounted by the distinguished New Deal historian William Leuchtenberg in The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. Several sweeping New Deal laws, enacted in response to the Great Depression, were killed off by the laissez-faire Court; an angry President Roosevelt proposed to "pack" the Court by appointing a new justice for each one over age 70; but before his plan came to a vote in Congress, two "swing" justices suddenly changed course and began upholding laws virtually identical to the ones they had voided just a year earlier (wags famously called it "the switch in time that saved nine"). After this 1937 "revolution," the Court turned away from economic review and toward different constitutional values, such as racial equality and freedoms of speech and religion.

Leuchtenberg rightly treats the battles over federal and state regulation as part of one political war. But a closer legal analysis might have emphasized that the Court stood on more solid constitutional ground in limiting Congress than the states.

The decisions invalidating state laws elevated an extremely controversial theory of worker/employer bargaining equality--"indefensible" and a "fantasy," the commentators called it--to the status of a "fundamental" premise under a provision ("due process of law") that does not speak directly to economics, and possibly not to the substance of legislation at all. By contrast, as John Marshall had argued more than a century earlier, the text's enumeration of congressional power over interstate commerce clearly "presupposes something not enumerated," a realm of purely local matters.

Although the "purely local" realm was bound to shrink considerably as the economy developed and became more interconnected, the post-1937 Court, by refusing to place even the most lenient restrictions on federal economic regulation, probably shirked its duty to enforce the constitutional scheme. (The 1994 decision invalidating the federal prohibition on carrying guns in schools may signal that the current justices are interested in setting such limits once again.)

The foregoing analysis, of course, presupposes some standards for appropriate constitutional decision-making: a preference for relying on relatively explicit textual provisions (such as the interstate commerce clause) over the most open-ended, malleable ones (such as "due process"); a close look at the problems that prompted the enactment of a provision, to help understand its meaning; and an effort to read a particular provision in the light of the role it plays in the overall structure of the Constitution (for example, the scheme of enumerated powers as the means for empowering but also limiting the central government). If there is no professional consensus in favor of this (or some other) set of interpretive criteria, then constitutional law will fall into chaos; and that is what has happened.

The Modern Court Besieged

After the New Deal, a considerable consensus developed around the Court's new role: protecting the rights of politically powerless minorities (racial, religious, and political) and leaving issues of economic regulation to the political process.

The Court under Chief Justice Earl Warren tested that consensus by aggressive decisions--on racial segregation, criminal procedure, school prayer, and other issues--that overturned long-standing practices. But what most fractured the constitutional culture was Roe v. Wade, which repeated Dred Scott's mistake of finding a highly controversial moral theory--this time that of radical individual autonomy--in the "due process" provision, on a deeply divisive issue and with little effort to justify the decision by the traditional standards of constitutional reasoning.

Indeed, whatever professional consensus once existed on methods of constitutional interpretation has broken down. For example, each of the contributors to the provocative new collection of essays entitled Benchmarks: Great Constitutional Controversies in the Supreme Court dislikes some important part of the Court's work; but they agree on little else. Walter Berns of the American Enterprise Institute excoriates all substantive readings of the due process clause--including both "liberty of contract" and "reproductive privacy"--as violations of the original intent and as simple impositions of the justices' preferred moral theory. (Berns traces the problem back to 1798 and Justice Chase's invocation of "general principles of law and reason.") By contrast, political scientist Hadley Arkes and ACLU president Nadine Strossen both defend a realm of constitutional privacy--except that Arkes supports the laissez-faire "right to contract" and questions abortion rights, while Strossen urges just the opposite.

The point is not just that these commentators disagree on the results; it is that they lack even a common starting point for interpreting the Constitution. Berns begins with original intent, Arkes and Strossen with forms of moral philosophy but very different ones. They simply talk past one another.

The most optimistic contribution in Benchmarks comes from Harvard professor Mary Ann Glendon, who urges that judges and scholars rediscover the virtues of traditional legal craftsmanship in interpreting the Constitution: close attention to text, history, and the overall constitutional structure. Whether that tradition can be rejuvenated, however, is uncertain.

Theological Reflections On Judicial Review

How might a Christian think about and respond to the institution of judicial review in our system of government? Obviously, neither Scripture nor church tradition says anything directly about that question. But the rich resources of Christian social ethics can be brought to bear on the work of the Court; and a good example is Jefferson Powell's fascinating book, The Moral Tradition of American Constitutionalism.

Powell, who teaches both law and divinity at Duke, rightly characterizes the key question: Do Christians have some theological reason to prefer decisions made by bodies directly accountable to the majority, such as legislatures, or decisions by more politically insulated judges? It is not customary for Christians to think about that question (unless they are lawyers, in which case they tend to think about it as lawyers rather than as believers). Too often, Christians react to court decisions based solely on the ultimate result: abortion rights bad, aid to religious schools good, and so forth.

Even if these particular reactions to results are correct, the ad hoc, result-oriented nature of the response is insufficient. As a theological matter, it fails to bring the sovereignty of God to bear on the process by which results are reached. And as a practical matter, it contributes to making the church appear as just another interest group with a very particular agenda.

One's reflection on the role of the Court should be guided by one's general approach to Christian social ethics. One obvious potential approach is the Christian natural-law tradition, which affirms that there is a significant category of moral truths that all human beings, including nonbelievers, can know by reason.

Perhaps the Court, insulated from political pressure, can serve as the deliberative body in our government that declares such principles. Natural law could be used more or less aggressively by courts. For example, natural-law arguments for the full humanity of the unborn have been employed not only to criticize Roe v. Wade for preventing states from criminalizing abortion, but also to argue further that states must protect the unborn: that is, that courts should strike down the liberalized abortion laws that exist in many states.

The use of natural law in judicial decisions has the advantage of recognizing the existence of objective moral truths "written on [all human] hearts" (Rom. 2:15). But there are also dangers, both theological and practical, with authorizing judges to seek and apply such principles in constitutional decisions.

As we have already seen, it is questionable whether the framers meant for judges to enforce moral principles beyond those reflected in the constitutional text. Moreover, as Justice Iredell warned long ago, "natural justice" has turned out to mean very different things to different judges: witness the long and tortured history of the use of "due process of law" to protect varying rights (slave ownership, economic freedom, abortion) that judges have viewed as "fundamental." This history reflects the theological truth that sin interferes with the ability of humans--including judges--to perceive accurately the demands and domain of natural law.

Powell also questions a "natural law" approach for the Court, but for even broader reasons. He writes from an Anabaptist perspective on social ethics, which has been powerfully reformulated recently by thinkers such as John Howard Yoder and Stanley Hauerwas. Like them, Powell emphasizes the importance of maintaining the uniqueness and integrity of the church's witness, and the threats to that uniqueness and integrity that arise when Christians become involved in the world, especially in the coercion that characterizes all acts of government. Thus, he argues, reliance on the Court to articulate "Christian" principles is a form of the "Constantinian" error that has repeatedly infected the church.

From this stance, Powell attacks the secular myths by which we idolize the Constitution and the Court. The justices do not simply articulate timeless moral principles, he argues; they mostly assume the modern American ideology of individual autonomy. Judicial review does not protect freedom against government in the simple way we often say it does; judges are themselves government officials, and their decisions are coercive acts that prohibit some person or group (majority or minority) from taking some action. And while we might like to believe that judges are sympathetic to the weak and powerless persons who are the fundamental focus of biblical social concern, the judges' membership in the privileged class ultimately limits such sympathies drastically.

Given these critiques of the Court's pretensions, Powell rightly sees some virtues in majoritarian decision making. While the Court is a "centralizing and homogenizing agent . . . of social change," allocating authority to other bodies, from Congress to local school boards, can "increase . . . the variety of decisionmakers available to hear and respond to deviant or weak voices." Moreover, while the constitutional tradition by nature makes dangerous claims to finality and absolute value, "American electoral politics loudly proclaims its own corrigibility, its openness to revision by the citizens' exercise of the vote."

As Powell recognizes, however, judicial review has important advantages over majoritarian decision making as well. Judges' sympathy for the weak may be limited, but it is often likely to exceed that of legislators, who are beholden both to majorities and to powerful economic interests. Powell thus ends up as more of a "Christian realist" than his Anabaptist rhetoric indicates: like Reinhold Niebuhr (whom he criticizes), he sees the need for the coercive power of the courts to fend off even worse coercion by majoritarian bodies.

All of which returns us to our first question: What sort of approach will enable the courts to check majoritarian power without abusing power themselves in the process? In this regard, remember the original argument of Hamilton and Marshall: courts should act when, but only when, they are enforcing a principle approved by the people who ratified the Constitution. That argument offers both a role for the Court and a constraint on its behavior.

Of course, enforcing the principle originally ratified is by no means a mechanical process. Judgment is required, for example, to determine how a principle applies to greatly changed conditions decades after its enactment. Given that irreducible element of judgment, the crucial qualifications for a Supreme Court justice are ones of attitude and temperament: an appreciation for both the importance of the Court's role and the limits on judicial ability to remake society through constitutional law, plus an appreciation for the virtues of legal craftsmanship. And such a sense of both the possibilities and limits of judicial decision-making is deeply consonant with Christian assertions about the simultaneous promise and weakness of human nature.

Thomas C. Berg is associate professor of law, Cumberland Law School, Samfor University.

Copyright(c) 1996 by Christianity Today, Inc/BOOKS & CULTURE, journal

November/December 1996, Vol. 2, No. 6, Page 27


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