Regulating Our Constitutional Rights: Democratic Rule or Judicial Fiat?

by William B. Glidden

Overview

The author argues that we the people’s rights under the Constitution as amended cannot be characterized as “specific prohibitions” against government. Life, liberty, and property rights, and the freedoms of religion, speech, and press, for example, are neither self-defining nor precise. Accordingly, in our representative democracy, the unelected, unaccountable, life-tenured judges on the Supreme Court should defer to the laws of Congress affecting these rights absent a clear constitutional violation. But the modern conservative Court has become increasingly willing to overturn the laws and policy choices of our nation’s elected representatives based on the judges’ political and ideological preferences. Congress has the constitutional power to control the jurisdiction of the lower federal courts and the appellate jurisdiction of the Supreme Court, but it has not chosen to exercise this power in any meaningful way to preserve and protect the American people’s right to be governed by majoritarian rule

Product Details

ISBN-13:	9781666936117
Publisher:	Bloomsbury Academic
Publication date:	05/22/2023
Pages:	280
Product dimensions:	6.00(w) x 9.00(h) x 0.75(d)

About the Author

William B. Glidden taught history and political science at Clarkson College of Technology in Potsdam, New York, and spent his career as a lawyer in the Law Department of the Comptroller of the Currency.

Table of Contents

Introduction

Chapter 1: Should We Reform the Role and Operation of the Court?

Chapter 2: The Drafting and Ratification of Our Constitution

Chapter 3: The Original Meaning of the Bill of Rights

Chapter 4: The Original Meaning of the Fourteenth Amendment

Chapter 5: The Court Shreds Congress’s Fourteenth Amendment Enforcement Power

Chapter 6: Fourteenth Amendment Due Process

Chapter 7: The Fourteenth Amendment and the Bill of Rights in the States

Chapter 8: The Court’s Enforcement of the Bill of Rights Against Congress

Chapter 9: Choosing Policies for Abortion, Religious Liberty, and Free Speech

Chapter 10: The Court Should Veto Only Clear Mistakes of Congress

Appendix: Table of Cases

Bibliography

Index

About the Author

Editorial Reviews

William B. Glidden mourns the evisceration of the Fourteenth Amendment and the erection of a juristocracy that has disrespected Congress’s powers almost from the first. Calling for a new constitutional provision requiring unanimity on the Supreme Court to overturn legislation, Regulating Our Constitutional Rights is an essential contribution for our age of revived debate about whether American democracy should continue to allocate so much power to judges.

Samuel Moyn

Glidden’s book coincides with the stress facing national courts in the US and abroad. President Joe Biden commissioned a panel to examine judicial reform. The panel published a comprehensive report in December 2021 detailing and analyzing a wide array of current ideas to reform judicial legitimacy but concluded without formally endorsing a path forward. Glidden’s book goes in a bolder direction: it begins and ends with a proposed constitutional amendment designed to return interpretation powers in the 14th Amendment—and its crucial array of equal protection and due process policies—to Congress. The amendment proposal requires unanimity in the Supreme Court for a federal law to be overturned. Glidden supports this idea through a historical summary of judicial review, which morphed into a culture of judicial supremacy in which the Supreme Court substitutes its will for the will of elected representatives, who reflect both parties and every region of the country. Despite the even poorer esteem many feel for the House and Senate, Glidden spends several chapters asserting his main point that “it has been primarily Congress, not the Supreme Court, which historically has promoted and nurtured democracy” (p. 14). Highly recommended. Advanced undergraduates through faculty; professionals; general readers.

Choice Reviews

Glidden presents a history of the U.S. Constitution and its judicial interpretation that leads him to the skeptical conclusion that the U.S. Supreme Court’s interpretations of the Constitution have on balance failed to improve the working of our democratic system. Addressing recent proposals for “Court reform,” he offers a constitutional amendment that would restate the core meaning of the Constitution and implement it by requiring that any decision invalidating a federal statute be unanimous. A useful contribution to on-going debates about the Supreme Court and its role in our government.

Mark Tushnet