The New York Times
The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitutionby Barry Friedman
In recent years, the justices of the Supreme Court have ruled definitively on such issues as abortion, school prayer, and military tribunals in the war on terror. They decided one of American history's most contested presidential elections. Yet for all their power, the justices never face election and hold their offices for life. This combination of influence and… See more details below
In recent years, the justices of the Supreme Court have ruled definitively on such issues as abortion, school prayer, and military tribunals in the war on terror. They decided one of American history's most contested presidential elections. Yet for all their power, the justices never face election and hold their offices for life. This combination of influence and apparent unaccountability has led many to complain that there is something illegitimate—even undemocratic—about judicial authority.
In The Will of the People, Barry Friedman challenges that claim by showing that the Court has always been subject to a higher power: the American public. Judicial positions have been abolished, the justices' jurisdiction has been stripped, the Court has been packed, and unpopular decisions have been defied. For at least the past sixty years, the justices have made sure that their decisions do not stray too far from public opinion.
Friedman's pathbreaking account of the relationship between popular opinion and the Supreme Court—from the Declaration of Independence to the end of the Rehnquist court in 2005—details how the American people came to accept their most controversial institution and shaped the meaning of the Constitution.
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The Will of the People
How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution
By Barry Friedman
Farrar, Straus and GirouxCopyright © 2009 Barry Evan Friedman
All rights reserved.
"It is their province to decide upon our laws"
In 1789, just three months into the First Congress of the United States, a momentous debate took place in the House of Representatives. The question before the House was whether the President should have to obtain the Senate's approval before removing cabinet officials. The text of the Constitution provides no certain answer to the question, stating only that the President "shall appoint" such officials "with the Advice and Consent of the Senate." The question was a fraught one: the Americans were still smarting from their treatment as subjects of the British crown and continued to harbor deep fears of a President with monarchical authority. Members of Congress noted the "importance and magnitude" of the issue, one on which, as Representative James Madison put it, "the genius and character of the whole Government" would depend. After long and heated debate the question was resolved, by a vote of 34–20, in favor of sole presidential removal power.
For present purposes, the truly stunning aspect of the debate over presidential removal of cabinet officials was the wide-ranging consensus in the House — among those both for and against the bill — that it would ultimately be for the judiciary to decide the constitutional question. Representatives who were trying to take sole presidential removal authority out of the pending bill may only have been seeking tactical advantage when they said they "would rather the Judiciary should decide the point, because it is more properly within their department." Yet even those who favored granting removal power to the President agreed that the judges would have the last word on the subject. "Gentlemen say it properly belongs to the Judiciary to decide this question," said Representative Abraham Baldwin of Georgia. "Be it so. It is their province to decide upon our laws; and if they find this clause to be unconstitutional, they will not hesitate to declare it so."
If the revolutionaries of 1776 had been told that a legislative body soon would be assigning primary, perhaps sole, responsibility for determining constitutional meaning to the judges, they would have been shocked. So too would their British counterparts. Whatever their other disagreements, few on either side of the Atlantic at that time would have advocated the power of judicial review this represented. Even five years prior to the removal debate such widespread agreement in favor of judicial review was unimaginable.
How, then, did the judiciary experience this remarkable rise?
Judicial review emerged as a solution to two very different problems that presented themselves in the early years of the new United States. First, as the Americans made the transition from conducting a revolution to running their state governments, respected members of the community came to experience grave misgivings about the kinds of laws being passed by popular assemblies. "The acts of almost every legislature have uniformly tended to disgust its citizens, and to annihilate its credit," protested one Maryland pamphleteer. In a small number of cases scattered throughout the states, judges gradually asserted the authority to declare laws inconsistent with constitutional guarantees null and void. Then the members of the Constitutional Convention of 1787, well aware of this development, seized on judicial review to solve a problem of their own: ensuring that the states did not stray from national authority. Rejecting a veto of state laws in the national legislature, the delegates decided instead to require state judges to ensure that state measures conformed to national law, including the Constitution itself. The early exercises of judicial power invariably occasioned dissent, but the strength of these twin rationales put judicial review on a course toward rapid acceptance.
LEGISLATIVE SOVEREIGNTY AND JUDICIAL POWER
"[T]he omnipotence of parliament"
In England, the very notion of a judge's striking down a legislative enactment would have been practically unthinkable, running afoul of "the omnipotence of parliament." On the eve of the American Revolution, William Blackstone published his Commentaries on the Laws of England. Though by all accounts only an average lawyer, Blackstone possessed the gift of synthesis. His Commentaries persuasively captured the essence of British law and legal thought at the time he wrote. In them, Blackstone described the vast power of Parliament, saying it "can ... do every thing that is not naturally impossible."
Sir Edward Coke's opinion in the 1610 Bonham's Case attained renown precisely because it seemed a rare judicial challenge to parliamentary omnipotence. Thomas Bonham had been fined and imprisoned by the Royal College of Physicians, acting pursuant to an act of Parliament, for practicing medicine without a license. Because the Royal College received any fine it imposed, Coke ruled for Bonham, holding that the Royal College's action violated the rule against parties being judges in their own case. In language that appeared to foreshadow the possibility of judicial review, Coke wrote: "[W]hen an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void."
As Blackstone explained it, however, Lord Coke had done nothing other than engage in an ordinary and uncontroversial act of interpreting a legislative statute to make sense of it — because that was all he was allowed to do. English judges, Blackstone readily acknowledged, were free to interpret parliamentary acts so as to avoid "any absurd consequences, manifestly contradictory to common reason." But if Parliament spoke clearly, that was the end of the matter; no judge could intrude. Taking Coke's own example, Blackstone said that though it was a rule that no man should act as a judge in his own cause, if a parliamentary statute said otherwise, "there is no court that has the power to defeat the intent of the legislature."
Parliament was not at liberty to ignore the English constitution; there simply was no higher power to hold it accountable. England's constitution, though unwritten, was very much a real thing. It rested on custom reaching back across the ages, as well as on various writings, such as the Magna Charta of 1215. The unwritten nature of the English constitution made it particularly susceptible to shifting arguments regarding its meaning. It was subject to being reinterpreted in light of changing practice or overwhelming expressions of the popular will. Despite the malleability of the unwritten constitution, however, Parliament still could step outside constitutional bounds by enacting a law plainly contrary to long and clearly settled usage. Nonetheless, Blackstone explained, what Parliament chose to do, "no authority upon earth can undo."
In sharp contrast with their English counterparts' notions of parliamentary sovereignty, the American revolutionaries chose to place their faith in the people. Virginia's Declaration of Rights of 1776 made very clear who was doing the ruling on their side of the Atlantic: "[A]ll power is vested in, and consequently derived from, the people." Similarly, the first provision of North Carolina's Declaration of Rights of 1776 read, "[A]ll political power is vested in and derived from the people only," while that of Maryland indicated that "all government of right originates from the people."
If anything, though, the idea of popular sovereignty initially served only to reinforce legislative authority in the states. The young Americans consolidated power in their legislatures, which were seen as the best embodiment of the people's will. Having had enough of the crown's heavy-handedness, the Americans cut their newly elected chief executives down to size. State governors, largely chosen by the legislative body, had no hand in making legislation and often were hobbled with executive councils. Pennsylvania's constitution — the most radical of the founding documents — actually did away with a chief executive altogether, in favor of a popularly elected governing council.
Prior to the Revolution, colonial judges had been subject to both executive and legislative authority. Appointed by crown officials and often viewed as part of the executive arm, judges were frequently beholden to the legislative assemblies for their salaries. There was a long tradition of legislators exercising judicial authority themselves, particularly when it came to adjudicating claims against the government. Both juries (which at the time decided not only the facts but legal questions as well) and the insistence that judges adhere strictly to case precedents helped control judicial discretion.
Following independence, state legislatures came to exercise even greater authority over the judiciary. The legislators usually chose the judges themselves, sometimes in conjunction with an executive who was also dependent on the legislature. Judges were appointed for fixed terms, and their salaries and perquisites of office were subject to legislative manipulation. Some legislatures felt free to remove judges; others abolished entire courts at will. Legislative bodies regularly exercised judicial functions, including serving as the court of last resort or overturning judicial determinations. In some states, such as New Hampshire, the judiciary was not considered an independent branch of government at all.
This was hardly an intellectual or political environment in which one would have expected judicial review to appear, and yet it did. As the 1789 congressional removal debate indicates, a fairly dramatic transformation in thinking about judicial review took place in the thirteen short years after 1776. The change was hardly deliberate. Like much else in this period, it was the result of improvisation, a response to events.
THE IMPETUS FOR JUDICIAL REVIEW
"[T]he vilest collection of trash ever formed by a legislative body"
Judicial review first emerged as a response to the excesses of democracy. During the 1770s and 1780s, the new American legislative bodies went on a binge of lawmaking. On the eve of the Constitutional Convention, James Madison penned a set of notes on the "Vices of the Political System of the United States." Madison, thirty-six at the time he wrote, had made politics his life, serving as a representative in both the Virginia legislature and the Continental Congress. In "Vices," Madison observed that "[a]mong the evils, then, of our situation, may well be ranked the multiplicity of laws, from which no State is exempt." The problem was not just the number of laws. Connecticut's Noah Webster, an educator and the father of American dictionaries, writing in The American Magazine in 1788 under the pen name "Giles Hickory," decried those measures that seemed to threaten basic rights: "[S]o many legal infractions of sacred right — so many public invasions of private property — so many wanton abuses of legislative powers!"
Drafters of the early state constitutions had foreseen, and tried to protect against, legislators overstepping their constitutional bounds. The chief safeguard of legislative fidelity was to be frequent elections. Most of the early constitutions also contained a bill of rights or similar declaration. These were included to provide a benchmark against which the people could measure the laws. If the legislative body transgressed these limits, or so the theory went, the people would respond by removing their faithless representatives. In a later round of constitution writing, executive and judicial authority was strengthened as well. Judges were appointed to serve during "good behavior" rather than for limited terms, and some constitutions prohibited cutting judicial salaries. States experimented with councils of "censor" or "revision," whose task it was to alert the people to legislative violations or to provide an executive veto. Pennsylvania's censors were charged "to enquire whether the constitution has been preserved inviolate in every part" or "whether the legislative and executive branches [had] ... assumed to themselves, or exercised other or greater powers than they are intitled to by the constitution." The Pennsylvania council was to censure unfaithful acts and to recommend calling a constitutional convention if necessary, while New York's Council of Revision actually possessed a veto on laws, which could be overridden only by a two-thirds legislative vote.
As it happened, these measures to ensure that legislatures kept within constitutional limits were not very successful. The three state councils that actually operated — in Pennsylvania, New York, and Vermont — often did so dysfunctionally and were eventually eliminated. As for the bills of rights, Madison himself derided them as "parchment barriers," too easily overcome by legislators. In the Virginia convention debating ratification of the federal Constitution in 1788, one delegate drove the point home by noting how ineffective Virginia's bill of rights had been: "But sir, this bill of rights was no security. It is but a paper check. It has been violated in many other instances."
Prominent members of the community began to express disgust as state legislatures regularly enacted laws that were seen as violating fundamental rights. Among the more frequent and troubling abuses were paper money and tender laws, debtor relief laws, and violations of the common law right to a trial by jury. James Iredell was a highly regarded North Carolinian who had emigrated from Great Britain as a teenager. He became a leading revolutionary and held many important legal posts in North Carolina government; in 1790, George Washington appointed him one of the first justices to the Supreme Court. Serving as North Carolina's attorney general in 1780, Iredell complained to his wife about the work of North Carolina lawmakers, calling it "the vilest collection of trash ever formed by a legislative body." William Plumer, who was to hold every high political office in New Hampshire, including governor and United States senator, issued a similar warning in 1787: "Our liberties, our rights & property have become the sport of ignorant unprincipled State legislators!"
The problem, as it fell particularly to James Madison to recognize, was not the legislators so much as their constituents, the people themselves. The original constitutional drafters had assumed the people would hold their representatives to account for violating constitutional principles. But as Madison explained in "Vices," the legislators too often were only doing what the people demanded. This led Madison to question "the fundamental principle of republican Government, that the majority who rule in such Governments are the safest guardians both of public good and of private rights." Iredell made much the same point, writing to his friend Richard Spaight, who was attending the Constitutional Convention: "The majority having the rule in their own hands, may take care of themselves; but in what condition are the minority, if the power of the other is without limit?" Speaking at the convention, Governor Edmund Randolph of Virginia told delegates, "Our chief danger arises from the democratic parts of our constitutions. ... None of the constitutions have provided sufficient checks against the democracy."
It was in this environment that judicial review emerged as yet one more means of dealing with troubling state legislation. In a small handful of cases in the 1780s, judges began to refuse to enforce laws found to violate fundamental liberties. Given the controversy that inevitably attended exercise of the practice, judges were understandably tentative and circumspect, careful to cast no unnecessary aspersion upon the legislature. It was not until 1795, when the practice of judicial invalidation was gaining wider acceptance, that a judge explicitly lowered a scathing finger at the sort of legislation that occasioned its necessity. In that year Supreme Court Justice William Paterson was "riding circuit," i.e., traveling to the lower federal courts to hold trials and hear appeals. In the circuit court of Pennsylvania, he presided over Vanhorne's Lessee v. Dorrance, a case involving conflicting claims of title to land. At issue was a Pennsylvania statute that took property from one group of claimants, forcing the ousted parties to accept other lands in return. Comparing American government favorably in theory with that of England, "where the Parliament is omnipotent, and can mould the Constitution at pleasure," Paterson nonetheless was appalled that in England "a more sacred regard should have been paid to property." "Shame to American legislation!" he exclaimed to the listening jurors.
Excerpted from The Will of the People by Barry Friedman. Copyright © 2009 Barry Evan Friedman. Excerpted by permission of Farrar, Straus and Giroux.
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Meet the Author
Barry Friedman holds the Jacob D. Fuchsberg Chair at the New York University School of Law. He is a constitutional lawyer and has litigated cases involving abortion, the death penalty, and free speech. He lives in New York City.
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