Judicial Activism: Bulwark of Freedom or Precarious Security? / Edition 2

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In this revised and updated edition of a classic text, one of America's leading constitutional theorists presents a brief but well-balanced history of judicial review and summarizes the arguments both for and against judicial activism within the context of American democracy. Christopher Wolfe demonstrates how modern courts have used their power to create new "rights" with fateful political consequences and he challenges popular opinions held by many contemporary legal scholars. This is important reading for anyone interested in the role of the judiciary within American politics. Praise for the first edition of Judicial Activism: "This is a splendid contribution to the literature, integrating for the first time between two covers an extensive debate, honestly and dispassionately presented, on the role of courts in American policy. —Stanley C. Brubaker, Colgate University

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Editorial Reviews

Herman Belz
A thoughtful and illuminating analysis of one of the most influential policy making institutions in contemporary government. Scrupulously fair in his description of the arguments for and against judicial activism, Wolfe presents the political and constitutional debate over the democratic character of judicial review in rich historical detail.
Robert George
Professor Wolfe has done something remarkable: put analytical rigor into the concept of judicial activism. The result is an extraordinarily penetrating analysis and critique of the Judiciary's usurpation of democratic authority.
Henry J. Abraham
Wolfe offers a lucid summary of the main arguments on judicial activism—both pro and con. He presents an intellectually honest dialectic between the traditional and modern views, stability versus change, legal interpretation versus legislating. Wolfe's book is destined to loom large in constitutional scholarship.
Dennis D. Dorin
The back cover of this revised edition contains quotes describing the original as "incisive," rich in historical detail, and "a splendid contribution to the literature," one "destined to loom large in constitutional scholarship." I dissent. In the Preface, Wolfe states that he has two purposes. First, he hopes to advance his previously published arguments against what he calls "modern judicial review," which, for him, is the dominant form of "judicial activism." Second, he wants to provide "the educated citizen," the intelligent lay person, with a fair and accurate articulation of the positions for and against judges' and justices' being activists. He is unconvincing in both. Wolfe's conception of "modern judicial review" returns us, once again, to that golden age of judicial decision-making that never was. For the first century or so of the Supreme Court's life, we are told, the rules governing how it should approach the Constitution were so widely accepted that they were barely even discussed. "Interpretation began by looking at the words of the document in their popular usage and interpreting them in light of their context." "Judicial review," from this perspective, "was not to be exercised in doubtful cases. Only when clear incompatibility with the Constitution existed would the judges declare a law void." If, in this context, Chief Justice Marshall, for example, seemed, through his constitutional opinions and decisions, to be building his own philosophy of Federalism into the fundamental law, that was only because the Constitution was, in fact, Federalist. But the Justices began to leave this Eden, Wolfe reports, with what he calls the "transitional era." The Court of post-Civil War America broke loose from its traditional moorings, for example, by transforming the Fourteenth Amendment's Due Process Clause into a substantive protection of what it considered the fundamental rights of economic freedom. By improperly drawing upon that Clause's vague contours, it read its "own economic philosophy into the Constitution." This destructive transformation in what the Justices saw as their role paved the way for where we find ourselves today--with a full-blown "judicial activism." Gone is the concept of a limited and determinable Constitution. Vanquished is the view that the Justices should only exercise judicial review in clear cases. In their stead is the conception that, given the "majestic" and "dynamic" generalities of the Constitution, jurists must inevitably "legislate" within the wide "interstices" of the law. One is tempted to say "please see the entire history of the Court's first century for a refutation." But where do we start? The Justices' interpretations of opaque parts of the Constitution in several pre-Marshall landmarks were bitterly and widely contested. Where, explicitly in the Constitution, was Marshall's concept of judicial review? His distinction between a Cabinet officer's political and ministerial duties? His exclusive reading to the Court's original jurisdiction? His recognition of implied powers in MCCULLOCH? His broad conception of the Territorial Clause there--one utterly renounced by Taney in DRED SCOTT? Did Marshall nail what everyone knew to be the parameters of the Commerce Clause in GIBBONS V. OGDEN? Taney's Court in its commerce cases? Wouldn't a Spencer Roane Chief Justiceship have been dedicated to the destruction of all sorts of major Marshall Court holdings, such as MARTIN V. HUNTER'S LESSEE and COHENS V. VIRGINIA? What about Marshall's paean to an evolving Constitution, whose broad provisions were to be "adapted to the various crises in human affairs"? Didn't substantive due process first emerge in Taney's defense of slavery in DRED SCOTT--in the face of a powerful attack upon it as an exercise in unjustifiable activism by Justice Curtis? Wolfe's assertion that the modern Court should decide only "clear" cases is equally untenable. This review is far too constricted a medium in which to debate it. But its massive problems might at least be suggested by what its implementation might mean for the Justices' conflicts-on-the-Circuits policy. Today, a constitutional conflict on the Circuits might well bring a case before them. A lack of clarity in the law may be creating a most undesirable situation, maybe even a crisis, of the Constitution's meaning very different things in various parts of the country. Such a state of affairs, however, would apparently cause few problems for Wolfe's federal judiciary! "Is the Constitution really unclear here? Well, then, order the district courts to dismiss all of the litigation. This is obviously not a case for our intervention. Congress and the President should define what's constitutional on this one--along with the few hundred other such issues we've referred to them this term." If nothing else, Wolfe has succeeded in clearly, insightfully, and forcefully delineating the key positions of restraintists and activists? Not so! Wolfe implies strongly that the John Stuart Mill of ON LIBERTY would have welcomed his "dialectic." Have both sides put forth their best arguments. Subject both to a siege. Counter one with the other However, the last thing Mill would have wanted was for an opponent of the activist position, like Wolfe, allegedly to be stating its strongest points and evidence, while simultaneously subjecting them to his attempts at a refutation. That, Mill admonished us, was not the way to do them justice. We must, instead, "be able to hear them from the persons who actually believe them, who defend them in earnest and do their very utmost for them." (Mill 1985, 99). So, were he really to employ Mill's dialectical approach, Wolfe would have to recruit an eminent activist to co-author his book with him? Why not? Ernest van den Haag and John Conrad differed profoundly upon whether we should retain the death penalty. Yet, they were able to produce a genuine, and delightful, Millsian exchange in their DEATH PENALTY - A DEBATE (van den Haag and Conrad, 1983). By contrast, Wolfe's commentary is lifeless. His delineations of defenses of the restaintist side just about always, and literally, get the last word. He too often lapses into question-begging. All these problems that might have been ameliorated, or even avoided, through the rigors of a real dialectic along the lines of van den Haag's and Conrad's. If Wolfe's conception of modern judicial activism, as a phenomenon fundamentally different from how the judiciary approached its duties in the Court's first century, is specious--and it is--where does this leave us? He is accurate in contending that all of the other restraintist and activist conceptions tend to collide with each other. I can, as a Justice, be "restrained" in not wanting to reach issues not inescapably before my Court. But, when we do take them, I can be "activist" in believing that we should give short shrift to precedents. Then how am I to be classified? My guess is that we might start to find our way out of our massively overgrown jungle of such commentaries--of libraries upon libraries of at least two centuries of books like Wolfe's--were we first to concede that, as terms, judicial "activism" and "restraint" need to be treated like "politics" and "democracy." We must always define them within the context in which we are using them. And we must realize that, for the Justices who have served thus far, they may take on at least 108 variations. In doing so, we may begin to sense the true subtleties of the search for limits to the judicial function in works like Mark Silverstein's superb CONSTITUTIONAL FAITHS: FELIX FRANKFURTER, HUGO BLACK, AND THE PROCESS OF JUDICIAL DECISION MAKING (Silverstein, 1984). I might add, in closing, that I have interviewed fourteen United States Supreme Court Justices, on a spectrum ranging from "liberal" ones like Warren, Black and Douglas to "conservative" ones like Scalia and Thomas. Not one of them, I can report, has ever told me that he or she is an "activist." Not one has ever said that he or she is willing to violate the Constitution. Moreover, not one would ever maintain that the Court should only decide "clear" cases. Not one would ever contend that a common-sense interpretation of the Constitution's most general, and often, most important, provisions would ever permit it. All of them would see the need "to act with restraint" in some instances and to fulfill "their duty" by playing an active role in others. Perhaps an inductive, rather than a deductive, approach would thus help us now--working, like a Silverstein or a J. Woodford Howard, from individual Justices and cases to later empirical and normative generalities. The issue then, would not be whether social engineering by the Justices is EVER appropriate. We never have had, and never will have, the implementation of the Constitution without it. The question might then be "when, in what form, to what extent, and with what consequences?" REFERENCES John Stuart Mill, ON LIBERTY. New York: Penguin Classics, 1985. Mark Silverstein, CONSTITUTIONAL FAITHS - FELIX FRANKFURTER, HUGO BLACK, AND THE PROCESS OF JUDICIAL DECISION MAKING. Ithaca, New York: Cornell University Press, 1984. Ernest van den Haag and John P. Conrad, THE DEATH PENALTY - A DEBATE. New York: Plenum Press, 1983.
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Product Details

  • ISBN-13: 9780847685318
  • Publisher: Rowman & Littlefield Publishers, Inc.
  • Publication date: 4/30/1997
  • Edition description: Second Edition
  • Edition number: 2
  • Pages: 184
  • Product dimensions: 6.06 (w) x 9.05 (h) x 0.32 (d)

Meet the Author

Christopher Wolfe, professor of political science at Marquette University, is a highly regarded scholar of constitutional law and political theory. He is the author of The Rise of Modern Judicial Review (second revised edition, Rowman & Littlefield, 1994) and How to Read the Constitution (Rowman & Littlefield, 1996).

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Table of Contents

Chapter 1 Introduction Chapter 2 Framing the Issue Chapter 3 The Constitution and the Need for Adaptation Chapter 4 Judicial Review and Democracy Chapter 5 Judicial Review and Good Government Chapter 6 Democracy and the Indirect Effects of Judicial Review

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