Active Liberty: Interpreting Our Democratic Constitution,' by Stephen Breyer - The New York Times Book Review - New York Times

'Active Liberty: Interpreting Our Democratic Constitution,' by Stephen Breyer - The New York Times Book Review - New York Times

Original Review by KATHLEEN M. SULLIVAN

"In promising that the justices he appoints "will not legislate from the bench and will strictly interpret the Constitution," Bush has faithfully recited the mantra that conservatives regularly use to signal their belief that the Supreme Court should defer to democratic decision making. But in fact, conservative justices have frequently invoked the Constitution in recent years to strike down laws passed by representatives of the people, especially statutes enacted by Congress. "

But the clarion call of conservatives is that any judge or justice that strikes down a law passed by the will of congress, and signed by the president (or passed with a veto override), is committing an act of judicial activism. But a careful read of the Constitution reveals that our judiciary branch is specifically empowered to do so.

Article III, Section 2, Paragraph 1: " The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. " (emphasis added)

That paragraph sets very specific criteria for judicial power. This paragraph clearly indicates that the judiciary has authority over all these cases and conditions. Indeed, it is the job and purview of the Supreme Court, and all competent courts established by congress, to review all cases involving equity (commerce), law and constitutional principle.

In addition, the Supreme Court is given original and appellate jurisdiction over certain types of cases:

Article III, Section 2, Paragraph 2: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." (emphasis added)

This paragraph empowers the Court to determine LAW and FACT. That gives the members of the court the authority and power to review the text of the law, as passed by congress, the legislative history, the legislative intent and the constitutionalityin all cases that are brought before the court. But it also empowers congress to make some limited rules and procedures as to how the court shall receive cases. Indeed, congress has set the number of justices on the Supreme Court, the number of federal judges, the districting of courts, and the creation of special courts.

At the federal level, we have the following courts as determined by congress:

I. The Supreme Court of the United States of America (9 Justices: 1 Chief Justice and 8 Associate Justices)

http://www.supremecourtus.gov/ http://www.uscourts.gov/supremecourt.html http://www.supremecourthistory.org/


II. The Appellate Court (12 Circuits - deals with appeals of cases heard in the lower courts with some exceptions)

http://www.uscourts.gov/courtsofappeals.html

- 1st Circuit: Maine, New Hampshire, Massachusetts, and Rhose Island (4), and Puerto Rico

- 2nd Circuit: Vermont, New York, Connecticutt (3)

- 3rd Circuit: Pennsylvania, New Jersey, Delaware (3)

- 4th Circuit: West Virginia, Virginia, Maryland, North Carolina, South Carolina (5)

- 5th Circuit: Mississippi, Louisiana, Texas (3)

- 6th District: Michigan, Ohio, Kentucky, Tennessee (4)

- 7th Circuit: Wisconsin, Illinois, Indiana (3)

- 8th Circuit: North Dakota, South Dakota, Minnesota, Nebraska, Iowa, Missouri, Arkansas (7)

- 9th Circuit: Monatana, Idaho, Washington, Oregon, California, Nevada, Arizona, Alaska, Hawaii (9), Guam and Pacific Territories

- 10th Circuit: Wyoming, Utah, Colorado, Kansas, Oklahoma, New Mexico (6)

- 11th Circuit: Alabama, Georgia, Florida (3), and Virgin Islands

- Washington, DC


III. The US District Courts (94 Districts throughout the continental US and Hawaii)

http://www.uscourts.gov/images/CircuitMap.pdf


IV. Military Courts (General Courts Martial, Special Courts Martial, Special Military Tribunals)

Army, Navy, Air Force & Coast Guard

V. Special Courts (Tax Court, Bankruptcy Court, Court of International Trade, Appeals Court for Federal Circuit, FISA and Special Tribunals)
Also called Subject Matter Courts

As we can see, ever since Marbury v. Madison (http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm) the Supreme Court, and lower courts of competent authority, have been reviewing the intent, meaning and application of the Constitution; the intent, meaning and application of laws passed by congress; and the intent, meaning and application of regulations, governmental operations and due process. When the Fourteenth Amendment was passed, and the provisions of the Bill of Rights were effectively applied to all state governments, the federal judiciary began actively reviewing issues involving the constitutionality of state laws and interstate interactions.

But the term "judical activism" is used as a derogative description for court decisions that overrule congress or executive actions based on an interpretation and application of the Constitution. The concept is most often used by conservative and ultra-conservatives that are not satisfied with the rulings of the court. Many of the rulings of the "Warren Court" and other court eras before the "Rhenquist Court" are considered "activist," including rulings like Brown v. Board of Ed, Miranda, Gideon, Griswold and, probably most freququently cited, Roe v. Wade. But even the Rehnquist court has held invalid popular legislation as invalid, including the Gun Free School Zones Act, the Violence Against Women Act and the Religious Freedom Restoration Act. There is confusion as to exactly what defines judical activism, and therein lies the problem with the clarion call.

Anyone interested in delving into the issues of judical activism should begin with the following resources:

What Exactly Is Judical Activism:..., by John W. Dean (http://writ.news.findlaw.com/dean/20050617.html)

Judicial Activism Reconsidered, by Thomas Sowell (http://www.amatecon.com/etext/jar/jar.html)

Indeed, many of the decisions involving "separation of church and state" are considered activist decisions, but many people misconstrue that these decisions were initiated and promoted by "leftist" and "liberal" organizations (i.e. the ACLU) and "liberal courts." But anyone familiar with the history of these decisions knows that these cases were not initiated by "liberal organizations" but by individuals, school districts or groups of parents. While many have involved amicus briefs (freind of the court briefs) from the ACLU, most people that recall this forget that there were an equal (or exceeding) number of amicus briefs filed by Christian and conservative groups. In making these decisions the Court took into consideration the arguments made on both sides of the issue, as well as the intent, meaning and application of the Constitution. (c.f Eastland, Terry (ed), Religious Liberty in the Supreme Court: The Cases That Define the Debate Over Church and State, Ethics and Public Policy Center - 1993 (Wm. B. Eerdmans Publishing Co.) available through ISI [www.isi.org])

The battle cry over judical activism often includes debate over the issues of "states' rights" and issues that have gone against the status quo (i.e. Brown v. Board of Ed), acted against the majority on the principle referred to as the "tyranny of the majority," and the application of political ideology in court decisions. But both conservative and liberal members of the judiciary have made such rulings. Certainly Gore v. Bush, which involved the presidential elections and problems associated with the the election process that put George W. Bush into office, was decided not on facts or constitutional principle, but ideological bias (c.f. Alan Dershowitz Op/Ed in New York Times). A review of court history will reveal that an equal number of so-called activist cases have been made by conservative and liberal courts. In fact, Earl Warren was considered a conservative justice for most of his career, but the "Warren Court" is often called one of the most activist and liberal courts in history.

Justice Stephen Breyer, a Clinton appointee and a moderate, has a new book, "Active Liberty: Interpreting Our Democratic Constitution" that is worth a read. In the matters discussed in this book Breyer would be considered as acting with judical restratin while Rhenquist (et al), who made the actual decision for the court, would be considered the activist.

For Breyer, the guiding theme in constitutional interpretation is enabling democracy. The end goal, purpose and function of the Constitution is to continue enabling all citizens, through the government, to enjoy the fundamental functions of the Constitution as outlined in the Preamble. In my view, this is an area where conservative judges and justices go astray, forgetting to put the entirety of the Constitution in the context and meaning of the purposes of government as delineated in the Preamble. Breyer argues that democracy is the purpose, foundation and function of all laws and governmental actions, powers and authority... and this is often the reason for the conservatives to cry "judicial activism."

"Yet the fair-minded, balanced and dispassionate tone of "Active Liberty" cannot conceal its startling premise: that self-professed conservatives who espouse textualism, originalism and strict constructionism often produce results that in fact turn our democratic tradition on its head. It may come as a surprise to some readers to encounter a Clinton nominee — indeed, one of only six justices appointed to the court by Democratic presidents in the past half-century — arguing so powerfully for "judicial modesty" and "judicial restraint" in the face of decisions by a court so long dominated by Republican appointees." Kathleen Sullivan, New York Times

As a result of the recent controversies surrounding judicial nominees--especially Supreme Court nominees--we can anticipate an increased amount of rhetoric regarding judical activism and judical restraint. One can only hope that there will be some cries from the wilderness that is partisan politics and some judical, legal and constitutional scholarship will emerge despite the polemic rhetoric and propaganda.