Tuesday, February 19, 2008

Non-Originalist Theories Of Constitutional Interpretation Part II

In Part I I dealt with Pragmatism and Judicial Minimalism, two non-Originalist theories of constitutional interpretation. In this post I would like to explain Judicial Restraint and John Hart Ely's Democracy-strengthening jurisprudence.

1) Judicial Restraint: Practiced most prominently by Justice Felix Frankfurter, judicial restraint calls on the judge to defer to the elected branches on most constitutional questions. In his dissent in Trop v. Dulles Frankfurter announced,

[I]t is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.

Frankfurter did not practice judicial restraint in the sense it is used today. Restraint is the oft-mentioned counterweight to judicial activism, a term with little content. Restraint in today's parlance refers to a judge's obligation to uphold legislation if it is not constitutional but to strike it down if it contradicts the Constitution. Frankfurter, however, applied what is called the presumption of constitutionality, and generally upheld legislation unless it shocked the conscience. Even if he disagreed with the legislation or felt the legislation might contradict the Constitution, he still upheld it.

I can't think of any modern day judge who followed in Frankfurter's footsteps.

2) Active Liberty: John Hart Ely, one of the most influential legal scholars of the 20th Century, argued that the courts should act in a way that strengthens democracy. Rather than overturning legislation on substantive constitutional grounds, Ely proposed making changes that would allow democracy to flourish.

Ely's starting point was the famous Footnote 4 in the Carolene Products case in 1938. Chief Justice Stone's famous footnote listed three situations where judicial scrutiny might be appropriate. The second and third were most relevant to Ely. One situation was when the legislation "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." Another instance when judicial intervention might be justified is when "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities"

Ely built his theory on these two situations. He argued that judicial deference is unwarranted when

(1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system.

Only in those situations should the courts intervene and make constitutional decisions. Democracy should be the guiding principle of the Court's doctrinal jurisprudence.

Ely died in 2003. Justice Stephen Breyer has seemed to pick up his mantle in Breyer's book, Active Liberty: Interpreting Our Democratic Constitution. The book takes up a number of jurisprudential issues, including constitutional and statutory interpretation, and he believes constitutional interpretation should be guided by the liberty of the ancients (see here for a book review by Richard Posner). Rather than support the institutional designs that curtail democracy but increase what we would call liberty, such as, for example, separation of powers and federalism, Breyer looks to find ways to strengthen democracy. Breyer's conception of democracy is basically direct democracy; in a perfect world direct democracy would flourish and protect minorities, but in our world the Court must act to implement the ideals that would have been legislated in that perfect world.

In Part III I'll deal with Richard Epstein's libertarian theory and Laurence Tribe's non theory.

No comments: