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.
