Weak Courts, Strong Rights
I largely agree with JJ’s analysis of activism. I have actually voiced my opposition to both Roe and Lawrence and general preference for stricter methods of constitutional interpretation on this blog quite often (see, e.g., here, here, here, and here).
But I’m also starting to place a bigger premium on a particular benefit of originalism: the benefit of progressing democratically. The practice of striking down democratically passed laws is, to me, the most problematic aspect of judicial activism. As I mention in the posts linked above, opponents of originalism erroneously conflate the theory with “no progress.” But by refusing to articulate new and non-existing rights in the Constitution, the Court would promote that same progress through democratic processes. I very much prefer slow and democratic progress (assuming I’m for the substantive result) to quick and judge-made progress through incorrect interpretations of the Constitution. But, more to the point, I almost have a general preference for any democratic law to any alternative articulation by the Supreme Court if it involves striking down that law.
Mark Tushnet wrote a book a couple of years ago called Weak Courts, Strong Rights, of which I’ve only read a snippet. He proposes a “weak-form judicial review,” which “respects the right . . . for majorities to prevail when, acting through their representatives, they enact statutes that are consistent with reasonable interpretations of the constitution even if those interpretations differ from those the courts offer.” Considering that the power of judicial review is mentioned nowhere in the Constitution, much less the ultra-powerful version exercised by federal courts today, there is no constitutional problem with this kind of review, putting aside the whole “it is emphatically the province of the judicial branch to say what the law is” thing articulated in Marbury v. Madison.
Such an interpretation has several benefits. First, it encourages democracy even more than an originalism that invalidates laws in the name of original intent. Second, it wouldn’t hinder federal, state and local governments’ pursuit of legitimate policy objectives. Take the three cases mentioned in the previous two posts as examples. Should the Second Amendment suddenly prohibit a crime-ridden city from regulating and banning certain fire-arms, considering that the law had been on the books for over 30 years — even if the Second Amendment protects an individual right? Should the Fourteenth Amendment prohibit using race to integrate schools, when the purpose of such integration — and the Fourteenth Amendment itself — is/was to help disadvantaged African Americans? Should the First Amendment’s guarantee of free speech prohibit the government from banning particular corporate campaign expenditures when the overriding purpose is to preserve the integrity of our basic political process and to prevent rich speech from drowning out poor speech?
Regardless of where one comes down on what the Constitution mandates in these instances, I find an interpretation of the particular constitutional provisions that permits these types of policy preferences to be entirely reasonable. Crime-prevention, diversity/integration, and preventing corruption are all compelling justifications for the laws at issue in those cases, and, putting aside the Court’s strict scrutiny jurisprudence, would seem to pass a reasonableness test.
A third benefit of this approach is that it would seem to lessen the likelihood of politically motivated decisions cloaked in legal justification. It would be more difficult for an activist judge to implement an alternative policy from the bench if the law merely had to represent a reasonable interpretation of the Constitution. This would also create a truer version of political accountability, as the populace is not free to overturn a Supreme Court decision with which it disagrees, absent a constitutional amendment.
Clearly this isn’t the way our Constitutional system works at the present. And I’m not even entirely convinced that it’s a better method. But I can’t help but be sympathetic to a form of judicial review that tends to defer to democratically passed laws as opposed to one that permits judges to permanently prohibit a particular brand of policy by striking down such laws — regardless of whether the decision is originalist or not. Under this type of analysis, all of the cases we’ve discussed — including Roe and Lawrence – may have been wrongly decided.
